Judge explains ANC ruling

2017-09-13 13:45
‘Conference held in breach of party constitution’.

‘Conference held in breach of party constitution’. (File)

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The process leading up to ANC provincial chairperson Sihle Zikalala ousting former premier Senzo Mchunu was on Tuesday declared invalid.

The Pietermaritzburg high court found that all decisions taken at the ANC’s eighth KZN provincial elective conference held between November 6 and 8, 2015, were “unlawful and void”.

But in a 66-page reserved judgment handed down on Tuesday, Judge Pete Koen, sitting with judges Sharmain Balton and Mahendra Chetty, said the court was disinclined to determine how the ANC should regulate its internal affairs going forward.

“Consequences will follow from the declaration of invalidity which, going forward, are best dealt with by the ANC itself in regulating its internal processes,” said Judge Koen.

The “Zikalala camp” had raised concerns that matters had gone too far and could not reasonably at such a late stage be “unravelled” and that if the PEC was declared invalid it could cause chaos in local and national government affairs.

The court heard arguments that 21 months have elapsed, during which those elected at the conference had occupied their positions, including high ranking officials deployed to important government posts.

Lawyers argued that if the application succeeded, it would “throw into uncertainty and possible chaos” everything that has happened in the intervening months and decisions taken would be vulnerable to being set aside on review. Damages claims might follow.

Judge Koen said the court gave “anxious consideration” to whether any declaration of invalidity of the PEC should be suspended or operate prospectively from the date of the present judgment.

However, he said the complaints raised were general conclusions of “what might be a worst case scenario” and the complaints about the “knock on” effects might be overstated.

“Ultimately deployments and appointments of members are made by the ANC through the NEC [national executive committee] and other structures, not provincial conferences,” the judge said.

A main finding of the court was that since there was no request by a third of the branches, the conference was held in breach of rule 17.2.1 of the ANC constitution and was therefore unlawful.

This is one of the grounds on which the application was based.

The judgment also dealt with the various alleged irregularities before and after the conference that were raised by those who brought the application, popularly referred to by the public as the “rebels”. They are Lawrence Dube, Sibahle Zikalala, Martin Mzangwa, Mzwebi Ngcobo and Lindiwe Buthelezi.

The complaints related to auditing of branch membership, that branches had inadequate time to remedy errors found, that there was too little time allowed for appeals, discrepancies in the accreditation of delegates and alleged manipulation of the voting results.

The judges found that the two-week period required between receipt of the membership rolls and the branch general meetings (BGMs) was not always observed, that three branches had been excluded from taking part in the PEC and one was allowed to participate irregularly.

However, these irregularities would not have affected the outcome, the court found.

The court also said it could not draw an inference of “fraud” arising from allegations raised that the actual results of the voting had already been tweeted on the official ANC Twitter account while the voting was still ongoing.

Judge Koen said the coincidence between the results contained in the tweet and the actual result of the voting was “indeed remarkable”.

However, there was a dispute as to the authenticity and timing of the sending of the alleged tweet and Zikalala had denied any knowledge of what he termed “this fraudulent and mischievous tweet”.

When the final result was announced, 1 459 delegates had voted and four ballots were spoilt. Senzo Mchunu received 675 votes and Zikalala 780 to become chairperson.

The judges ruled that there was no bar against the application being brought by individual ANC members as opposed to branches, and that the delay in bringing the case was “reasonable” due to attempts to first resolve the matter without going to court.

In fact the judges ordered the ANC to pay half the “rebel” group’s costs.

Judge Koen said the aggrieved members had tried to engage the ANC leadership (including meeting with President Jacob Zuma) and reach an amicable resolution, but were “largely ignored”.

Read more on:    pietermaritzburg

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