IN THE FREE STATE HIGH COURT, BLOEMFONTEIN (REPUBLIC OF SOUTH AFRICA)
CASE NO:
In the matter between:
MPHO RAMAKATSA 1st Applicant
TUMISO MBETHE 2nd Applicant
MAJORO MPURU 3rd Applicant
ELISHA MBANGULA 4th Applicant
CECILIA CHAKA 5th Applicant
NTSHIWA MOROLLOANE 6th Applicant and
ELIAS MAGASHULE 1st Respondent
THABO MANYONI 2nd Respondent
WILLIAM BULWANA 3rd Respondent
MAMIKI QABATHE 4th Respondent
MSEBENZI ZWANE 5th Respondent
TATE MAKGOE 6th Respondent
BUTANA KHOMPELA 7th Respondent
OLLY MLAMLELI 8th Respondent
SISI MABE 9th Respondent
SAM MASHINENE 10th Respondent
FEZI NGUMBENTOMBI 11th Respondent
MALEWATLE NTHEDI 12th Respondent
SEBENZILE NGANGELIZWE 13th Respondent 2
MANANA TLAKE 14th Respondent
SISI NTOMBELA 15th Respondent
MANANA SECHOARA 16th Respondent
SARAH MOLELEKI 17th Respondent
MADALA NTOMBELA 18th Respondent
JACK MATUTLE 19th Respondent
MEGGIE SOTYU 20th Respondent
MATHABO LEETO 21st Respondent
JONAS RAMOGOASE 22nd Respondent
GERMAN RAMATHEBANE 23rd Respondent
MAX MOSHODI 24th Respondent
MADIRO MOGOPODI 25th Respondent
AFRICAN NATIONAL CONGRESS 26th Respondent
APPLICANTS’ FOUNDING AFFIDAVIT
I, the undersigned,
MPHO RAMAKATSA do hereby make oath and state that: 3
1. I am an adult male member of the Joyce boom (Ward 25) branch of the ANC in the
Motheo region of the Free State province, residing at 28 Akkoorde Crescent,
Pellissier, Bloemfontein. I am a citizen of the Republic of South Africa with ID No
6805085412084. I am also a member of the Umkhonto we Sizwe Military
Veterans Association (“MKMVA”) and a former combatant who underwent military
training under the auspices of the ANC in order to fight for the implementation of
democracy and a bill of rights in South Africa. I have been a member of the ANC
for the past 25 years. In 1987, I was arrested for ANC activities and sentenced to
15 years and served part of the sentence on Robben Island until my release in
1991 as part of a comprehensive deal made in the negotiations process.
2. The facts contained in this affidavit are both true and correct. Save where it is
otherwise stated or appears from the context, the facts set out herein are within my
own personal knowledge. Any legal submissions that I make are based on the
advice of my legal representatives, which I accept to be correct.
3. I am duly authorised by the 2nd to 6th applicants to depose to this affidavit on behalf
of all the applicants in this matter. I attach the supporting and confirmatory
affidavits of the 2nd to 6th applicants hereto. In turn and as more clearly set out the
applicants are duly authorised and mandated to bring this application in respect of
and as members of the Class A and Class B groups of persons defined below.
The applicants
4. I am the 1st applicant in this matter. 4
5. The 2nd applicant is TUMISO MBETHE, an adult male ANC member of the Ward
46 branch, Motheo region, residing at 15254 Phase 6 Bloemfontein, and who is a
citizen of South Africa with ID No 7301095767088.
6. The 3rd applicant is MAJORO MPURU, an adult male ANC member of the Arthur
Pitso (Ward 3) branch, Thabo Mofutsanyana region, residing at M2355
Manyatseng Location, Ladybrand, and who is a citizen of South Africa with ID No
7003315282084.
7. The 4th applicant is ELISHA MBANGULA, an adult male ANC member of the Dora
Tamane (Ward 30) branch, Lejweleputswa region, residing at 752 Modikeng Road,
Welkom, and who is a citizen of South Africa with ID No 7505058179089.
8. The 5th applicant is CECILIA CHAKA, an adult female ANC member of the
Ndabeni Qithi (Ward 1) branch, Xhariep region, residing at 2402 Phomolong
Location, Zastron, and who is a citizen of South Africa with ID No 8106220863085.
9. The 6th applicant is NTSHIWA MOROLLOANE, an adult female ANC member of
the Ndabeni Qithi (Ward 1) branch, Xhariep region, residing at 1018 Dinotsning
Location, Zastron, and who is a citizen of South Africa with ID No 8101250252085.
10. The applicants bring this application in terms of subsections (a), (c) and (d) of
section 38 of the Constitution of the Republic, in that, in addition to acting in their
own individual interests, the applicants:
10.1. are members of the Class A group of persons, who are all signatories to the
forms marked annexures “FA1-1” to “FA1-260”, which are contained in a 5
separate bundle marked “Bundle A”, totaling approximately 2250. All these
signatories are bona fide members of the ANC who belong to ANC branches
falling into one of the 5 regions of the ANC which make up the Free State
province. There are more members of the ANC who have expressed an
interest in participating herein in this manner. With the leave of the above
Honourable Court, the list of signatories will be augmented in the replying
affidavit;
10.2. are also members of the Class B group of persons, who are all signatories to
the forms marked annexures “FA2-1” to “FA2-287”, which are contained in
a separate bundle marked “Bundle B”, totaling approximately 2520. All
these signatories are voting citizens of South Africa and are resident in the
Free State province living under ANC governments in all spheres of
government; and
10.3. are also acting in the public interest, as more fully set out later in this
affidavit.
11. The fundamental rights which have been directly and indirectly infringed and/or
threatened primarily derive from section 19 of the Constitution of the Republic,
namely the right to make political choices, the right to participate in the activities of
a chosen political party, the right to fair elections for any legislative body and the
right to vote. Other fundamental rights which are also violated or threatened are
spelt out hereunder in the body of this affidavit. 6
The respondents
12. The 1st respondent is ELIAS (also known as ACE) MAGASHULE, who has since
1994 to date held the position of Provincial Chairperson and Deputy Chairperson
of the ANC in the Free State province respectfully, c/o ANC Free State provincial
office, Kaiser Sebothelo Building, Charles Fitchard Street, Bloemfontein (“the
provincial office”).
13. The 2nd respondent is THABO MANYONI, who currently assumes the position of
deputy chairperson of the ANC in the Free State province and is a member of the
Provincial Executive Committee (“PEC”).
14. The 3rd respondent is WILLIAM BULWANA, who currently assumes the position
of provincial secretary.
15. The 4th respondent is MAMIKI QABATHE, who currently assumes the position of
deputy provincial secretary.
16. The 5th respondent is MSEBENZI ZWANE, who currently assumes the position of
treasurer.
17. The 6th respondent is TATE MAKGOE.
18. The 7th respondent is BUTANA KHOMPELA.
19. The 8th respondent is OLLY MLAMLELI.
20. The 9th respondent is SISI MABE. 7
21. The 10th respondent is SAM MASHINENE.
22. The 11th respondent is FEZI NGUMBENTOMBI.
23. The 12th respondent is MALEWATLE NTHEDI.
24. The 13th respondent is SEBENZILE NGANGELIZWE.
25. The 14th respondent is MANANA TLAKE.
26. The 15th respondent is SISI NTOMBELA.
27. The 16th respondent is MANANA SECHOARO.
28. The 17th respondent is SARAH MOLELEKI.
29. The 18th respondent is MADALA NTOMBELA.
30. The 19th respondent is JACK MATUTLE.
31. The 20th respondent is MEGGIE SOTYU.
32. The 21st respondent is MATHABO LEETO.
33. The 22nd respondent is JONAS RAMOGOASE.
34. The 23rd respondent is GERMAN RAMATHEBANE.
35. The 24th respondent is MAX MOSHODI.
36. The 25th respondent is MADIRO MOGOPODI. 8
37. The 6th to 25th respondents are the 20 additional members of the PEC. For the
purposes of this application, their physical address of service is c/o ANC Free
State at the provincial office.
38. The 26th respondent is AFRICAN NATIONAL CONGRESS (also referred to herein
as “the ANC”), a voluntary association which is a political party duly registered in
accordance with the electoral laws of South Africa, with its headquarters situate at
Chief Albert Luthuli House, Cr Sauer & President Streets, Johannesburg.
39. The 26th respondent is cited herein in both its national and provincial incarnations.
In its national capacity, its address of service is c/o The Secretary-General, Chief
Albert Luthuli House, Cr Sauer & President Streets, Johannesburg. In its
provincial manifestation, its address for service is the provincial office. Service will
be effected at both addresses.
40. The cost orders will only be sought against those respondents who may file notice
to oppose the application.
Other Interested Parties:
41. The applicants will further move for an order authorising and directing them to
publish a notice accordance with the notice of motion hereto informing all
interested parties of this application and of the relief moved for and inviting them to
join should they prefer to do so.
42. Relief will also be asked for against the decisions of the Annual General Meetings
and Bi-annual General Meetings of the branches. The branches number 316 in 9
total and service on each of these branches or their BEC’s will be impossible in the
light of the urgency of the matter as well as the logistical implications. I know that
the interested parties do have access to Daily Sun, Volksblad and The Star
newspapers circulated all over the Free State Province. A notice by way of
advertisement should thus come to the attention of all interested parties.
Jurisdiction
43. The cause of action arose in Parys, within the jurisdiction of the above Honourable
Court.
Nature of the application
44. The main application is essentially a constitutional matter for the assertion and
vindication of the applicants’ rights to participate in the activities of the political
party of their choice as enshrined in section 19(1)(b) of the Constitution of the
Republic and consequently for the granting of the following orders:
44.1. declaring the conduct of the respondents in holding the ANC provincial
conference, held on 21-24 June 2012 in Parys, to be unlawful,
unconstitutional, null and void;
44.2. reviewing and setting aside the said decisions and/or omissions, particularly
pertaining to the holding and the outcomes of the ANC provincial conference;
44.3. compelling the 26th respondent to disband the provincial executive committee
of the Free State province. 10
45. The three legal bases for the aforesaid main relief are premised on one or more or
all of the following three legal grounds (viewed both alternatively and
cumulatively), namely:
45.1. Common-law contractual grounds; and/or
45.2. Direct constitutional attack mainly based on section 19 (and other provisions)
of the Constitution of the Republic; and/or
45.3. Judicial review under PAJA.
46. Although these legal grounds or legs are primarily relied upon in the alternative,
and it will therefore be sufficient for the above Honourable Court to uphold any one
of them, it is imperative to point out upfront that:
46.1. the same factual complex will be relied upon in respect of each of the
grounds; and
46.2. there is much overlap between the three grounds, such that some of the
submissions made in relation to one may be imported into the other. To that
extent, the grounds should accordingly also be viewed and considered
cumulatively without rigid compartmentalisation. The sequence in which they
will be asserted will be dictated by the court in accordance with the law.
47. The ultimate and single question to be answered is whether or not the applicants,
taking into account the totality of the submissions made are entitled to the relief
sought due to the infringement of the rights at issue, be they the constitutional 11
rights asserted, the contractual rights arising from the ANC Constitution and/or the
administrative law rights arising from PAJA.
48. I am advised that this approach will be dealt with in more detail in both the written
and oral submissions which will be presented to the above Honourable Court.
49. Pending the determination of the complex issues raised in Part B, the application
seeks an interim alternatively a final interdict as set out in Part A of the notice of
motion:
49.1. prohibiting the 1st to 25th respondents from acting as the duly elected
members of the provincial executive committee of the ANC for the Free State
province; and
49.2. mandating the 26th respondent to take all necessary steps to dissolve the 1st
to 25th respondents as members of the PEC and to instal an interim structure
in terms of Rule 12(2)(d) of the ANC Constitution.
50. This step (the interdict) is sought essentially because what we are dealing with
here is a continuing wrong and illegality whose harmful consequences are felt with
each passing day and must be curbed and cannot await the ultimate resolution of
the complex legal issues raised in Part B and whose ongoing consequences are
permanently devastating for the thousands of applicants, as well as millions of
South Africans.
51. I however add in parenthesis that the interdictory relief will only be pursued if it
becomes clear from the answering affidavit, the record and the anticipated pre- 12
hearing discussions between the parties that a two-stage application cannot be
avoided. The principled approach of the applicants is that the merits of the
application must be adjudicated as soon as possible so that all the parties can
have certainty.
52. The 2nd, 3rd, 5th and 6th applicants were co-applicants in an urgent application
under case number 2674/2012 that was heard on the 28th of June 2012 by this
Court. The application was struck from the roll due to inter alia to the preliminary
points of non-urgency and non-joinder. Said application has since been
abandoned. I was not a party to that application. The nearly 5,000 signatories
were also not party to the previous application. It was not a class action.
Legal / regulatory context
53. Before setting out the factual background, it would be appropriate to give a brief
exposition of the instruments and the provisions thereof which will play a pivotal
role in the analysis of the issues which arise for determination in respect of both
legs of this application.
54. Key provisions of the ANC Constitution (a copy of which is annexed hereto marked
“FA3”) which will be cited, include:
54.1. The preamble thereof which declares, inter alia, that:
“the historic April 1994 election (has) placed the ANC in the position of responsibility for leading the process of reconstruction and development 13
aimed at eradicating the problems of poverty and inequality created by apartheid and creating a just and equitable economic and social order”.
54.2. Rule 3.3 thereof, which provides that:
“The ANC (also) contests elections as a registered political party drawing its electoral support from all sections of South African society.”
54.3. Rule 4.1:
“Membership of the ANC shall be open to all South Africans above the age of 18 years irrespective of race, colour and creed, who accept its principle policies, programmes and are prepared to abide by its constitution.”
54.4. Rule 4.13:
“Members shall pay an annual subscription fee as determined by the National Executive Committee.”
54.5. Rule 5.1, which outlines the rights and duties of ANC members:
“A member of the ANC is entitled to:
(a) take a full and active part in the discussion, formulation and implementation of the policy of the ANC;
(b) receive and impart information on all aspects of ANC policy and activities;
(c) …
(d) take part in elections and be elected or appointed to any committee, structure, commission or delegation of the ANC.” 14
54.6. Rule 12.2:
“Without prejudice to the generality of its powers, the NEC shall:
(a) …
(b) Issue and send directives and instructions to and receive reports from the provinces;
(c) Supervise and direct the work of the ANC and all its organs, including national, provincial and local government structures;
(d) Ensure that the provincial, regional and branch structures of the ANC function democratically and effectively. The NEC may suspend or dissolve a PEC where necessary. A suspension of a PEC shall not exceed a period of three months. Elections for a PEC which has been dissolved shall be called within nine months of dissolution. The National Executive Committee may appoint an interim structure during the period of suspension or the dissolution of the PEC to fulfil the functions of the PEC.”
54.7. Rule 17.2:
“The Provincial Conference will:
(a) …
(b) Be composed of:
(i) Voting delegates, as follows:
aa At least 90% of the delegates at Conference shall be from branches, elected at properly constituted branch general meetings. The number of delegates per branch shall be in proportion to its paid up membership, provided that each branch in good standing shall be entitled to at least one delegate.” 15
and
“The Provincial Conference will:
(c) …
(d) …
(e) Vote for the election of the PEC by secret ballot. Each voting delegate shall vote once in each ballot.
54.8. Rule 17.3:
“The Provincial Conference will:
(a) …
(b) …
(c) Elect the Provincial Chairperson, Secretary, Deputy Secretary, Treasurer and the additional 20 members of the Provincial Executive Committee who will hold office for four (4) years. The Provincial Secretary shall be a full-time functionary of the organisation.”
54.9. Rule 19:
“19.1 The PEC will: … Supervise and direct the work of the ANC and all its organs in the province, including the ANC provincial and local government caucuses”
“19.9(o) The PEC will … Have the duty to appoint annually a Provincial List and Candidates Committee, of not less than five and not more than nine persons which will identify regulations for the drawing up of the Provincial List of candidates for national elections, provincial elections and for the selection of candidates for local government elections.” 16
54.10. Rule 23.1:
“Every member of the ANC shall belong to a branch, which is the basic unit of the organisation.”
54.11. Rule 23.2:
“The branch will:
(a) …
(b) …
(c) Be the place where members exercise their basic democratic rights to discuss and formulate policy
(d) Be the basic unit of activity for members.”
54.12. The glossary and explanation of terms used in the ANC Constitution,
particularly:
“Constitution: The Constitution of the ANC contains the rules and principles that prescribes (sic) the rights and duties of its official structures and members. It is the basic law of the movement which must be observed by all members.”
“Invalidly obtained membership: Membership obtained falsely, not in accordance with the Constitution and therefore legally ineffective.”
“Quorum: The minimum number of officials or members of a structure, committee or assembly usually a majority, who must be present for the valid transaction of the business of the meeting.”
“Registered political party: This refers to registration in terms of the Electoral Act, 1993.” 17
“Shall / may (convene, etc): ‘Shall’ normally means ‘must’ (obligatory no discretion). ‘May’ usually confers a discretion power or function.”
55. In addition to the ANC Constitution, the following documents will be relied upon as
they contain binding constitutional provisions insofar as their contents could
legitimately be expected or impliedly be regarded as incorporated therein and
binding upon the organisation:
55.1. The “Imvuselelo Branch Handbook – Guidelines for Branch AGMs”, a copy of
which is annexed hereto marked “FA4”;
55.2. The “Membership Audit Guidelines” dated 31 May 2011, a copy of which is
annexed hereto marked “FA5”.
56. Finally, the report of the bi-annual general meeting of the Joyce Boom Branch
Ward 25 (Motheo region) held on 6 May 2012, annexed hereto marked “FA6”, will
be used to illustrate what takes place in a typical elective branch general meeting
and the format of a report which has to be compiled thereafter and submitted to
the provincial secretary’s office. The information extracted from these reports has
to be collated, inter alia, to compile the ballots used for the purposes of conducting
elections at the relevant regional or provincial conference, as the case may be.
PAJA
57. The following provisions of PAJA will be principally relied on:
57.1. In section 1(b) “administrative action” means “any decision taken, or any
failure to take a decision, by a natural or juristic person, other than an organ 18
of state, when exercising a public power or performing a public function in
terms of an empowering provision which adversely affects the rights of any
person and which has a direct, external legal effect …”
57.2. “Empowering provision” means “a law, a rule of common law, customary law,
or an agreement, instrument or other document in terms of which an
administrative action was purportedly taken.”
57.3. The relevant provisions of sections 3, 4, 5 and 6 of PAJA, which are not
quoted herein to avoid prolixity. Copies of PAJA will be made available at the
hearing.
The applicable provisions of the Constitution
58. Reference will be made to the following specific sections of the Constitution of the
Republic of South Africa, more particularly:
58.1. Section 8(2) thereof
58.2. Section 10
58.3. Section 19 (read with sections 18 and 20)
58.4. Section 39(2) and
58.5. Section 172(1).
59. Once again and to avoid prolixity, only the following most pertinent sections of the
Constitution will be quoted:
59.1. Section 8(2): 19
“A provision of the Bill of Rights binds a natural or juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of the duty imposed by the right.”
59.2. Section 19:
“(1) Every citizen is free to make political choices, which includes the right:
(a) …
(b) to participate in the activities of … a political party, and
(c) to campaign for a political party or cause.
(2) ….
(3) Every adult citizen has the right –
(a) to vote in elections for any legislative body established in terms of the Constitution …
(b) …. ”
59.3. Section 172(1):
“When deciding a constitutional matter within its power, a court –
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency.”
60. It is, inter alia, all these three broad legal categories (ie the common law of
contract, PAJA and the Constitution) and the interplay between them which will be
applied to the factual complex of this application in order to justify the granting of 20
the relief prayed for in the notice of motion. I now turn to the exposition of that
factual complex.
Factual matrix and context
61. What follows is a brief outline of the salient facts, which are not expected to be
contentious.
62. Alternatively, the respondents are hereby invited elaborately to deny any of these
facts which it may seek to context, failing which these facts must be taken as
common cause contextual considerations.
63. In or about 2008 and in accordance with the ANC Constitution, the previous
provincial executive committee of the ANC in the Free State province (“the PEC”)
was duly elected in a duly and properly convened provincial conference held in the
town of Parys. More specifically:
63.1. The 1st respondent was then re-elected as the provincial chairperson of the
ANC and the rest of the provincial executive committee was constituted as
set out below.
63.2. The 2nd respondent was elected as deputy chairperson.
63.3. Sibongile Besani (“Besani”) was elected as the provincial secretary, a full-
time position which is responsible for the day-to-day running of the
organisation in the province. The provincial secretary and the provincial 21
chairperson also both serve as ex officio members of the national executive
committee of the ANC.
63.4. The 4th respondent was elected as the deputy secretary.
63.5. Mxolisi Dukwana (“Dukwana”) was elected as the treasurer.
63.6. 20 additional members were also elected. Save to disclose that some of the
present respondents were also members of the previous provincial executive,
nothing turns on the names of the additional members.
64. The term of office of the provincial executive was scheduled to expire in 2012. It
was therefore anticipated and agreed that the next elective provincial conference
would be held in 2012. As is customary in the ANC, certain processes have to
precede the holding of a legitimate provincial conference.
65. Roughly speaking, the period between the beginning of January till the middle of
February constituted the first buildup and preparation period leading towards
regional conferences and the provincial conference. The initial cut-off date for the
auditing of membership in order to determine participation in these conferences
was 12 February 2012. Subsequently, this date was extended a number of times.
66. At the beginning of the 2012 year and as expected, the ANC in the Free State
province, including all its members and structures, were gearing up and getting
ready for the compulsory provincial conference, since the four-year term of the
PEC was going to expire during the course of the year. 22
67. Such preparations, as is customary, included the convening of branch general
meetings aimed at ensuring that branches of the ANC, which constitute the
lifeblood of the organisation, are in good standing and ready to participate in the
provincial conference.
68. The reason for these pre-conference activities in the ANC branches is simply that
the delegates to such an elective conference have to come from properly
constituted branch general meetings. Without properly constituted branch general
meetings having nominated and elected delegates who are democratically
representative of those branches, there can be no lawful mandated delegates to
make up the requisite 90% of the elective conference.
69. Similarly, and as the branch is the basic unit of the ANC, all members of the ANC
exercise their rights and entitlements, which are conferred in the ANC Constitution,
via the medium of the branch and branch decisions and resolutions and by
delegating their own democratic voices to a few of their number chosen according
to a predetermined procedure. That is why these representatives are thereafter
referred to as “delegates”. Without having been properly and democratically
assigned as such by the majority of members, they cannot qualify as delegates of
that majority.
70. These two simple and undeniable truths lie at the heart of the present application.
71. I must pause and mention that the current (2012) round of the provincial
conference has assumed even greater than usual significance for all ANC 23
members for two important reasons, which are of relevance to the present
application and will be dealt with later hereunder, namely:
71.1. The ANC’s centenary and the fact that the ANC was formed in the Free State
province; and
71.2. In December 2012, the Free State Provincial ANC will be the host province
for the ANC national conference, which is the five-yearly elective conference,
the most important event in the calendar of the organisation and in the life of
the Republic of South Africa by far.
72. The PEC will play a very pivotal role in the aforesaid event, both in hosting the
mother body and delegates from all the eight other provinces, as well as, more
significantly, as a conduit through which all the members of the ANC in the Free
State will exercise their own organisational rights and constitutional rights to
participate in the activities of their political party of choice, the ANC.
73. With all this in mind, the necessary preparatory activities leading up to the much
awaited provincial conference were set in motion during the aforesaid
preparational period.
74. It soon also became clear that there would be contestation for the leadership of the
PEC because, among other things, there was a view which was openly articulated
by some members, including myself, that the 1st respondent, who is by far the
longest-serving ANC provincial chairperson in South Africa, having served three
previous terms since 1994, ought to be replaced in a process or organisational 24
renewal and revitalisation. There were of course other members of the ANC who
genuinely held the contrary view that he should be re-elected into the position.
Both groups are perfectly entitled to hold their opinions. Which view must prevail
can only be determined through a genuinely democratic process. This is normal in
the ANC, which is founded upon the principle of democracy.
75. Added to the special significance of the 2012 provincial conference already
referred to above, this anticipated leadership contestation added to the
heightening of the stakes during the aforesaid preparational period.
76. The down side of all this was that it also became clear that the contesting
groupings or factions would stop at nothing in their quest, either to cling to power
or to ascend to it, as the case may be. In all this, the main casualty became the
thousands of ANC members with no personal interest in the contested positions.
Their only interest was that their rights as entrenched in both the ANC Constitution
and/or the Constitution of the Republic should be observed and that no methods,
other than democratic means, should be employed to determine the leadership of
the party in the province and, by extension, the leadership of the entire
organisation and also the leadership of the government at all levels. It is the
multiple violations of the ANC members’ rights, including the applicants and the
signatories, which have given rise to the disputes which have now been brought to
the above Honourable Court for adjudication in line with section 34 of the
Constitution of the Republic, which provides that: 25
“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”
Judicial notice
77. In addition to the facts detailed above, the above Honourable Court will be called
upon to take judicial notice of various well-established and notorious facts which
are public knowledge and which it is intended to rely upon in the consideration of
this matter. These facts include:
77.1. Since 1994, the 26th respondent, the ANC, has been the majority ruling party
having won all the elections to date at the national, provincial (Free State)
and local government levels.
77.2. The ANC is also a registered political party in terms of the Electoral At. This
in turn lends statutory recognition to its constitution since, in order to register
as a political party in terms of section 15 of the Electoral Commission Act 51
of 1996, such a party is compelled to submit its constitution to the
Independent Electoral Commission. The relevance of this pertains to the
PAJA and constitutional legs of this application and the public nature of the
obligations at issue.
77.3. The South African electoral system is based on proportional representation
based on political party lists which determine public representation at
national, provincial and to some extent also at local government levels. 26
77.4. The ANC was formed in 1912, ie some 100 years ago, in Mangaung in the
Free State province. Accordingly, the ANC is celebrating its centennial year
in 2012.
77.5. The ANC is scheduled to hold a crucial elective national conference in
Mangaung in December 2012, where the members will elect a new national
executive committee leading up to the next national and provincial elections
to be held in 2014. The conference and, by implication, the delegates therein
will inter alia be determinative of who will be the president of the Republic of
South Africa in 2014.
78. It is therefore no exaggeration to state that the outcome of this application is likely
to have a direct impact on the democratic system, as practised in terms of the
South African Constitution.
79. As part of the contextual material, the above Honourable Court will also be called
upon to take into account the history of political exclusion and disenfranchisement
of the majority of South Africans which places a higher premium on the
constitutional values of democracy, accountability and human dignity. Accordingly,
these values will also be invoked in this matter.
Types of meetings
80. In the correspondence, the bundles and in this affidavit, there is interchangeable
reference made to Branch General Meetings (“BGMs”) and Bi-Annual General
Meetings (“Bi-AGMs”). For the purposes of this application, there is no qualitative 27
difference between these two types of meeting insofar as the constitutional
requirements of a quorum (of 50% plus one) are concerned, as well as the
meeting’s competency to take decisions which are binding on the members and
the organisation.
Broad categories of the violations of the applicants’ membership rights
81. It is self-evident that at the heart of any lawfully convened conference of the ANC,
whether at a regional, provincial or national level, is the basic requirement that
delegates participating at such gatherings must have been elected at “properly
constituted branch general meetings”. It is these delegates who make up 90% of
the voting delegates at such conferences.
82. If the persons who participate at such a conference as delegates have not been
elected at property constituted branch general meetings or, conversely, if
delegates who have been elected at properly constituted branch general meetings
are denied such participation in a conference, it stands to reason that axiomatically
any decision to hold such a conference is invalid and that the outcomes of such a
conference are equally invalid, null and void. This is the foundational bedrock of
this application.
83. It is trite law that in respect of voluntary associations, such as the ANC, the
provisions of its constitution assume the force of contractual terms as between a
member of the association and itself. It is an equally well-established principle of
our law that the relationship between a political party and its members is a 28
contractual one, the terms of the contract being contained in the constitution of the
party.
84. Any violation of these provisions of the ANC Constitution is accordingly a breach of
the contractual obligations owed by the ANC to its members and, to that extent,
has to be adjudicated according to the ordinary principles of contractual law.
85. In the present instance, there are at least seven respects in which the 2012
provincial conference was tainted by such breaches, resulting in illegality. More
specifically, these violations or irregularities were brought to the attention of the
26th as well as the provincial executive committee via the provincial secretary, who
all nevertheless made a conscious decision either to go ahead and hold the
provincial conference in question and/or to act upon and give recognition to its
outcomes. The seven respects or broad categories of irregularity which will be
invoked in these proceedings can be conveniently grouped as follows:
85.1. Delegates who participated in the provincial conference, whereas they had
not been duly mandated or elected “at a properly constituted branch general
meeting” of ANC members in good standing.
85.2. The manipulation of the membership numbers in specific branches, enabling
them to send delegates to the provincial conference or to send a different
number of delegates than they would lawfully be entitled to or even to
purportedly make a quorum or fail to quorate, as the case may be. 29
85.3. The exclusion of bona fide delegates who had been elected at properly
constituted branch general meetings and/or the decision to disallow members
in good standing from participating in the election of delegates.
85.4. The establishment of parallel structures and the decision to allow and
sanction the participation at the provincial conference of “delegates” from
parallel structures in respect of which disputes had not been resolved, as well
as permitting more than one parallel branch to qualify for the provincial
conference.
85.5. The failure to give branches an opportunity to query the audit findings, in
breach of the audit guidelines.
85.6. The failure to give recognition to nominations legitimately made by ANC
branches in respect of the membership of the provincial executive committee.
85.7. A cluster of other miscellaneous violations which appear from the papers and
which will be dealt with in argument.
86. Due to these and other violations, the provincial secretary of the ANC wrote
several letters, inter alia, to the secretary-general of the ANC, Gwede Mantashe
(“Mantashe”), and also to the national officials of the ANC, otherwise known as
the Top Six, appealing for intervention. These all fell on deaf ears as no response
thereto was received.
87. The proverbial last straw came when, a few days before the provincial conference,
the provincial secretary was apparently not in a position to vouch for the 30
credentials of the expected delegates. He once again wrote to the leadership, in
vain. Premised on this, and acting on his conscience, the provincial secretary
decided that he could no longer participate in the provincial conference. At least 8
other members of the provincial executive committee, including Dukwana, also
opted not to be associated with the unlawful activities associated with the
premature holding of the conference and dissociated themselves by refusing to
attend the conference. The ANC Youth League, which would normally constitute a
separate delegation at such a conference, also refused to attend or participate, for
the same reasons.
88. Annexed hereto and marked “FA7” to “FA12”, is a series of letters dealing with
issues relevant to this application, written by the then provincial secretary, Besani.
The last of these letters (annexure “FA12”) outlines his reasons why he “could no
longer suppress (his) conscience and had to rethink (his) participation”.
89. The best evidence I could obtain to confirm that this correspondence was indeed
sent, which is not expected to be disputed, is a letter written to all regional
secretaries by Besani’s professional assistant, Ms Nozi Rasei, a copy of which is
annexed hereto marked “FA13”. This letter was written as a response to the
many branches which were distressed by the lack of response from the ANC to
their numerous complaints and as the dates for the provincial conference and the
national policy conference were nearing. 31
90. As a continuation of the factual matrix, I now proceed to set out the supporting
factual evidence in respect of the aforestated irregularities. Before doing so, I will
explain the methodology employed in this affidavit.
Methodology
91. It is not reasonably practicable to detail in these papers every single instance or
example in relation to all these categories of irregularities. In the circumstances, it
will be important to employ a workable methodology. What is proposed to be done
is to present all the available documentary evidence and to refer only to a few
extreme examples, which will paint the picture and the patterns and trends to be
relied upon as proof of such irregularities. It will be argued at the hearing that
even a certain threshold of these breaches is sufficient for the court to grant the
relief sought.
92. For the convenience of the above Honourable Court and to facilitate the exposition
of the salient factual details, a separate Bundle C will be prepared herein. Bundle
C contains all the relevant documentation which will be used in support of this
application. It is made up of a variety of such documents ranging from complaint
letters from branches, individual sworn statements, correspondence to the
provincial secretary, correspondence from the provincial secretary to the national
leadership of the ANC and so on.
93. It would be impractical and unnecessary to refer to and verify each and every
document contained in Bundle C. Instead, some of these documents will be
referred to as examples of the categories of irregularities listed above. The list of 32
irregularities dealt with herein and even in Bundle C is sufficient to grant the relief
sought, but it is by no means exhaustive.
94. The most practical methodology is to group the issues according to the five
regions, to identify some of the irregularities as they manifested themselves in
specific regions and to cite only a few selected examples with the aim of the full
spectrum of irregularities and regions. The grouping of the violations by region is
merely done to illustrate the widespread nature thereof.
95. Given the total number of branches, the categories of irregularities and the number
of regions, the abovementioned methodology is the most logical and economical
way to avoid the unnecessary prolixity of the papers. It is anticipated that the
respondents will not dispute the existence of these documents even if their
contents and meaning may be contested, thus making the factual analysis even
simpler than might meet the eye.
96. Also contained in Bundle C and in respect of each of the 5 ANC regions making up
the Free State provincial structure of the ANC, will be:
96.1. The preliminary regional audit report;
96.2. The final audit report; and
96.3. A copy of an analysis which I have prepared based on these audit reports
and other available information. These analysis documents provide a
summary of the manipulation of membership numbers in respect of the 33
various ANC branches relevant to this application on the basis of which some
of the irregularities were made possible.
97. Upon a reading of the pleadings bundle in conjunction with Bundle C, it will be
easy to present a complete and simplified picture of the various violations
perpetrated against members of the ANC and the public at large.
98. The most important fact to emphasise is that the establishment of any single one
of the abovementioned categories of irregularities is sufficient to fatally taint the
legitimacy of the provincial conference and its outcomes.
99. Bearing this in mind, I now proceed to do a region by region exposition and
analysis of the irregularities with, where necessary, references to the documents
contained in Bundle C. This is the nucleus of the application. The Motheo and
Lejweleputswa regions will be used as case studies and, to avoid prolixity, only
one or two examples will be cited herein in respect of some of the other regions.
Motheo region
100. According to the final audit report, the Motheo region is composed of 49 branches,
of which 38 passed the membership audit and were accordingly allowed to
participate in the provincial conference. The region was also declared eligible to
hold its own conference on the basis of the conclusion that it had reached on the
threshold number of 34 branches in good standing.
101. Even a cursory analysis of the final audit report will reveal that at least two
branches, namely Bloemfontein Ward 19 and Botshabelo Ward 32 were wrongly 34
declared to have passed the audit when a proper analysis of the evidence
suggests that they should have failed for want of a quorum. This would bring to 32
the number of branches which passed the audit, thus rendering the Motheo region
ineligible to either hold its own regional conference or participate in the provincial
conference, both of which have occurred in the past two months.
102. In any event, the mere fact that the audit was finalised on 21 June 2012, being the
first day of the conference when the registration of delegates was busy being
finalised, is clear evidence of a gross irregularity and breach of contract. To make
matters worse, even the preliminary audit had not been presented to any of the
branches in the region. I am confident, for example, that had my branch been
granted the opportunity to present its report, it would have passed the audit. This
is so because I was present when we held a quorate meeting. Due to having no
opportunity to appeal the audits, we were permanently excluded.
103. There was no room for any queries and/or objections to be conveyed, let alone
resolved, before the start of the conference. This defeated the whole purpose of
conducting the audit and the audit results can therefore be regarded as pro non
scripto. The right of members, through their branches, to raise such objections is
expressly, alternatively impliedly, provided in the audit guidelines. This particular
complaint and irregularity is applicable to all the five regions and it will be repeated
hereinbelow. In none of the regions was the final audit result presented to any of
the branches. 35
104. Further and in any event, some of the anomalies which preceded the audit were
incurable except possibly by a re-run of the branch general meetings, which was
not done.
105. For example, in the Moses Mabhida branch, an elective bi-annual general meeting
had been held on 22 April 2012 without reaching the necessary quorum. 10 bona
fide members were disallowed from participating and at least 2 non-members of
the branch were not only allowed to participate but were to be elected into the
BEC. When these complaints were intended to be tabled to the National Audit
team on 13 and 14 May 2012, the regional deployee who had caused the
problems failed to attend, as a result of which these issues were never resolved.
106. In view of the aforegoing and on 15 May 2012, the deputy secretary of the branch,
Mpikelele Masoabi (“Masoabi”), and other ANC members addressed a letter to
the secretary-general of the 26th respondent. No response thereto was ever
received. Masoabi wrote a follow-up letter to the provincial secretary which, too,
was never responded to. These letters are contained in pages Bx to By. I attach
hereto the confirmatory affidavit of Masoabi marked “FA14”.
107. In the Fidel Castro branch (Ward 27), specific requests were made by the duly
elected chairperson and branch secretary about the behaviour of the regional
secretary in question which had resulted in the audit process not being conducted
in the Motheo region, as well as other irregularities at the launch of that branch.
These letters are contained in pages Bx to By. In this regard, a confirmatory
affidavit of Katleho Thekiso is attached hereto marked “FA15”. 36
108. In the following branches, Tebang (ward 30), Parks Mankahlana (Ward 3),
Kopanong (Ward 17) and Steve Bogacu (Ward 2), the legitimately elected
delegates were not invited to the provincial conference and the branch was or
must have been represented by “delegates” who were elected by the branch
membership. A confirmatory affidavit of Nomalungelo Jali, who is the deputy
branch secretary of Ward 2, is attached hereto marked “FA 16”.
109. In my own branch (Ward 25), I was personally present when, on 6 May 2012, a
legitimate branch general meeting was duly held and, inter alia, nominations were
democratically made in respect of the mandated branch delegates to represent us
at the regional and provincial conferences, as well as the persons nominated for
membership of the provincial executive committee. I refer to annexure “FA6”
above a copy of the branch report in respect of that meeting, which was duly sent
by the branch secretary to the regional office and which was passed on by the
regional to the provincial secretary, as is the standard practice.
110. I can confirm that subsequent to the abovementioned meeting and until the
provincial conference, no other meeting or rerun meeting was held in any branch
to deal with the same issues. Yet, the mandated delegates were not invited to the
provincial conference and, what is more, the names of persons duly nominated by
the majority for provincial executive positions were not even placed on the ballot.
This is the clearest example of the illegitimate and unlawful disenfranchisement of
duly paid up members and branches of the ANC. 37
111. I can also confirm that in my branch, there has never been any issue of parallel
structures or concerns about the status of the branch or any of its members. No
such meeting could have taken place without my knowledge. Having presented
our report, it came as a shock that we were never invited to the audit and yet we
were excluded from the conference.
112. This particular irregularity prevalently permeated dozens of other branches
throughout the province, but I use my own branch only as an example. In order to
avoid overburdening the record, I have included in Bundle C extracts from
branches which are in the same position whose delegates were similarly excluded
and leadership nominees similarly ignored.
113. The motives for this behaviour was to ensure, by hook or crook, that the
democratic process would be aborted and any member nominated to oppose the
faction led by the 1st respondent is defeated, not through democratic means but by
fraudulent and unlawful and unconstitutional machinations.
Thabo Mofutsanyane Region
114. Once again, neither the preliminary audit report dated 23 May 2012 nor the final
audit report dated 21 June 2012 (the first day of the provincial conference) was
presented to the branches in accordance with the audit guidelines.
115. Most of the irregularities which manifested themselves in this region could only
have been cured by re-runs, which did not take place. 38
116. The national deployees determined and ruled that more than 20 branches ought to
conduct reruns. However, on the scheduled and agreed dates for such meetings,
the NEC members of the national deployees simply failed to attend such meetings,
as a result of which they did not take place until the provincial conference. For
example:
116.1. Susan Shabangu, the convenor of the national deployees in the Free State ,
failed to attend the Bi-AGM’s of Bodibeng, where she had agreed to officiate.
116.2. Fikile Xasa failed to attend the meetings of the Joe Slovo branch scheduled
for 16 June 2012 and Kgubetswana branch scheduled for 17 June 2012,
despite having agreed to do so.
116.3. Nathi Mthethwa was scheduled to conduct the rerun meeting of
Phuthaditjaba branch on 17 June 2012. He failed to turn up.
116.4. Enoch Godongwana was deployed to conduct the meeting of Mamavuka
branch. He failed to show up.
116.5. Jeff Radebe was scheduled to conduct the Bi-AGM of Rabohlale branch. He
did not do so.
117. As a result, all these meetings did not take place. However, all the branches
mentioned above were represented by “delegates” at the provincial conference
when no Bi-AGMs had been held, at which the members could choose their
delegates. Some of the aggrieved members of these branches are signatories
under Class 1. 39
118. Approximately 30 individual members who were either duly elected to represent
their branches at the regional and provincial conference or present at the relevant
meetings have deposed to sworn statements testifying to the irregularities. These
affidavits are included in Bundle C at pages 220 to 309.
119. To the equal surprise of branch members, some other branches which did not
reconvene were depicted in the final audit as having conducted quorate meetings.
These branches in this category include Caleb Mothabi branch, Joe Nhlanhla, Joe
Slovo, Govan Mbeki, Bodibeng and Phuthaditjhaba.
120. In Wards 16 and 19, bona fide and duly elected branch delegates were not invited
to the provincial conference but the two branches participated in the provincial
conference, obviously with illegitimate representatives.
121. Parallel branches were launched in the following branches: Wards 3, 10, 13, 14,
17 and 18. These problems were never resolved but these branches participated
in the provincial conference.
122. In the Witsie and Sizanani branches, the duly elected branch delegates were
never informed about or invited to the provincial conference.
123. Other examples will be pointed out from the correspondence and documents
contained in Bundle C. 40
Lejweleputswa Region
124. Here a number of branches failed the preliminary audit because they had failed to
reach the required quorum. No branch meetings were re-run. Yet, the same
branched “passed” the final audit. This is a logical impossibility and renders the
final audit to be null and void.
125. In addition, the final audit was produced on 15 June 2012, some five days before
the provincial conference, and no opportunity was granted to branches to raise
objections.
126. At Mmamahabane Branch (Ward 1) on 22 April 2012 a Bi-AGM was conducted in
terms of the prescribed rules. The PEC deployee was Mokebe Thithi. On 24
April 2012 a parallel Bi-AGM was held with one Olly Mlaleli as the deployee. The
BEC of this branch was not advised of this parallel “Bi-AGM”.
127. An objection was lodged but to date no response has ever been received.
128. I attach hereto as “FA17A” an affidavit by Teboho Makoala who confirms the
correctness hereof. was present at this meeting. The letter of objection was sent
to the Provincial Secretary but no response was ever received. I attach a copy of
the letter of complaint letter hereto as “FA18”.
129. To assist in the analysis of the tables which I prepared and are contained in
Bundle C, I will again randomly select the Zingithwa branch (Ward 5, Matjhabeng
sub-region), where, in terms of the preliminary audit, there were 436 members and
15 members in the grace or probationary period. The maximum membership 41
possible could thus only be 451. Yet the membership in the final audit was 492,
increased by an inexplicable 41 members. As a result of this, the branch was
entitled to more delegates tan would have been the case if the statistics were not
inflated. A more detailed analysis of the tables, evidencing further widespread
irregularities, will be conducted at the hearing.
130. In passing, I would refer to the curious phenomenon of branches, such as
Solly Mdingi (page 107) and Quito Canavale, both of which somehow
“passed” the audit. Presumably delegates who were elected at those Bi-
AGM’s were not invited to the Regional and Provincial Conferences.
131. These irregularities were prevalent in the other regions as well.
132. Another random example is the AP Mda branch where Lulama Qeba was the
deployee to the Bi-AGM that was held on the 21st April 2012. Subsequent to that
the 8th Respondent made attempts to establish a parallel structure in that branch.
133. I attach hereto as “FA19” an affidavit by Stuurman Rantsoale, who confirms the
correctness hereof, Stuurman Rantsoale was present at this meeting. A letter of
complaint was sent to the Provincial Secretary, but no response was ever
received. I attach a copy of the letter of complaint letter hereto as “FA20”.
134. In the Joe Slovo Branch, the Bi-AGM was postponed on 21 April 2012 due to an
unsuitable venue. PEC deployees Manana and Thithi were present. Subsequent
to the meeting being postponed said Manana went to another venue outside of 42
this ward and continued with a Bi-AGM. The branch chairperson, secretary and
other BEC members were not present.
135. I attach hereto as “FA21” an affidavit by Vuyiswa Motaung who confirms the
correctness hereof. Vuyiswa Motaung was present at this meeting. A letter of
complaint was sent to the provincial secretary but no response was ever received.
I attach a copy of the letter of complaint letter hereto as “FA22”.
136. In the Hector Peterson branch, a “secret” Bi-AGM was convened without the BEC
being aware of same. This Bi-AGM did not form a quorum. A large contingent of
SAPS members denied access to the venue when members of the branch learned
of this “Bi-AGM” and tried to attend. It is impossible to organise a lawful Bi-AGM
without the knowledge of the existing BEC.
137. A legitimate Bi-AGM was subsequently held and delegates and nominations voted
on. This ward thus has a parallel structure.
138. I attach hereto as “FA23” an affidavit by Nokwanda Jijingubo who confirms the
correctness hereof. Nokwanda Jijingubo was present at this meeting. A letter of
complaint was sent to the Provincial Secretary but no response was ever received.
I attach a copy of the letter of complaint letter hereto as “FA24”.
139. In the Ngoyi Branch, people who were not members of this branch were hired and
bussed in to attend the BAGM. This issue was raised with the deployee, one
Manana Seitsoaro, who disregarded it. 43
140. The audited membership for this branch was 417 but the attendance register
which was supplied by the region had more than 695 names qualifying to
participate.
141. I attach hereto as “FA25” an affidavit by Zwelibanzi Thuthani who confirms the
correctness hereof. Zwelibanzi Thuthani was present at this meeting. A letter of
complaint was sent to the provincial secretary but no response was ever received.
I attach a copy of the letter of complaint letter hereto as “FA26”.
142. In the Ward 21 branch, no quorum was reached in this meeting. Decisions were
despite this still taken.
143. I attach hereto as “FA27” an affidavit by Sicelo Maqhubu who confirms the
correctness hereof. Sicelo Maqhubu was present at this meeting. A letter of
complaint was sent to the provincial secretary but no response was ever received.
I attach a copy of the letter of complaint letter hereto as “FA28”.
144. In the Enoch Sontonga Branch, parallel Bi-AGM’s were held.
145. I attach hereto as “FA29” an affidavit by Welcome Makhobotloane who confirms
the correctness hereof. Welcome Makhobotloane was present at this meeting. A
letter of complaint was sent to the provincial secretary but no response was ever
received. I attach a copy of the letter of complaint letter hereto as “FA30”.
146. In the Dora Tamane Branch, the Bi-AGM was called off by the provincial deputy
secretary, Ms Qabathe, and Playfair Morule, a member of the NEC and national
audit committee, due to the possibility of violence. This meeting was never 44
reconvened. Yet this branch had “delegates” at both the regional and provincial
conferences.
147. No general meetings were held at OR Tambo and Brummy Matlakala branches.
The leadership of both branches launched objectives to this effect. Yet the final
audit incorrectly states that these two branches reconvened properly and
accordingly passed the audit on these false premises.
Xhariep Region
148. I attach hereto as “FA31” – “FA36” written statements from Maliehe Matatolo
Connie, Mashapa Leboela, Seboka Mabatho Susana, Lefa Lekhula, Jaas
Rethabile Sandrah and Buyeye Nkosana Shadrack. All of these members were
elected during properly constituted BAGMs in this region. They were not invited to
attend the provincial conference. Instead individuals who were not elected during
properly constituted BAGMs attended the provincial conference as “delegates” of
their respected branches.
149. I attach hereto as “FA37” a letter from Buyeye Nkosana Shadrack a member of
the Batho Pele ward. This letter was addressed to the provincial secretary. In this
letter he addresses serious issues concerning the refusal of handing over of
branch membership files by one, Julia Sekhanka. The said Julia Sekhanka
furthermore convened a parallel branch in this ward and obtained signatures in a
fraudulent manner. 45
150. I attach hereto as “FA38” a similar letter from Mr. Nkosana to the office of the
secretary general wherein these issues are also brought to the attention of the 26th
respondent.
151. No feedback were ever received on these two letters.
152. I attach hereto as “FA39” – “FA42” affidavits by Piet Gopolang, Kelekile
Meshack Rapulane, Nnuku Marumo and Jacobus Nchefu. These deponents
are all members of the ANC in Lovemore Koto Branch (Ward 3) Petrusburg.
These affidavits indicate the extent of the problems faced by members of the ANC.
What is important to note is that some members were excluded from participating
in the audit and that parallel structures existed. No attempts were made to resolve
the parallel branch issues. Delegates were invited from certain branches to the
provincial conference despite the issues not being resolved.
153. Contrary to what is stated in the final audit report, the John Rasmeni and Albert
Nzula branches did not hold any BGMs or Bi-AGMs.
154. Needless to say, neither the preliminary report nor the final report was ever
presented to the branches as stipulated in the audit guidelines. The final report
was actually signed on 22 June 2012, the second day of the provincial conference!
Yet “delegates” from this region had already been registered for the conference.
This is patently unlawful and irregular.
Fezile Dabi Region
155. In this region, most of the discrepancies already detailed above were repeated. 46
156. Examples include the Steve Tshwete branch in the Mafuke sub-region and the Joe
Nhlanhla branch, where it is clear that the numbers were altered to hide the fact
that these branches failed to hold quorate meetings. They nevertheless “passed”
the final audit and therefore participated in the conferences.
Synopsis
157. I am advised that it will be argued at the hearing that any one or more of the
aforesaid irregularities will provide the sufficient factual basis for each of the legal
grounds advanced by the applicants. A much more simplified presentation and
tabulation of these violations will be prepared for the hearing and attached to the
heads of argument for the convenience of the above Honourable Court.
158. More significantly, it will be argued that despite the blatant nature of these
irregularities, all efforts to prevent the holding of the provincial conference until the
resolution thereof were deliberately frustrated by the 1st respondent and other
provincial executive members who belong to this undemocratic faction.
159. The 26th respondent also deliberately turned a blind eye to these discrepancies,
which were brought to its attention on numerous occasions.
160. This can more easily be illustrated by pointing out some significant inconsistencies
in how the 26th respondent has dealt with other situations of alleged electoral
irregularities, which should pale into insignificance in comparison to the grave
situation in the Free State, which has been described above. I will only give two 47
examples for the benefit of the above Honourable Court. Again, these are matters
which are in the public domain and are not disputable.
161. In December 2011, the Limpopo province of the ANC also held its elective
provincial conference. Thereafter, those who lost the elections raised one
complaint about the alleged printing of fraudulent accreditation cards. The 26th
respondent saw it fit to launch a full-scale investigation headed up by Minister Jeff
Radebe, which eventually confirmed the authenticity of the conference. I believe
that this investigation was only launched because, unlike in the Free State, the
faction favoured by the 26th respondent had lost the elections.
162. More recently, in the OR Tambo region of the Eastern Cape, when the favoured
faction once again lost the election, the elective regional conference was aborted
and adjourned before the announcement of the results. This was reportedly done
because there was a discrepancy of 4 more persons who had voted than the
accredited number. The 26th respondent has endorsed the abortion of that
conference.
163. Comparing these actions of the 26th respondent to its inexplicable failure and
refusal to act in the face of literally hundreds of irregularities and fraudulent
activities in the Free State, it must follow that its decisions and indecisions are
motivated by ulterior and improper motives and in bad faith. I attach hereto
marked “FA43” to “FA44” a few randomly selected newspaper articles pertaining
to the examples referred to above. 48
Legal bases for the application
164. I now proceed to deal with the legal aspects of the application, based on the
detailed factual exposition contained hereinabove. The legal principles are
separated for the sake of logical flow. It is not my intention to strictly
compartmentalise the rights at issue, more particularly in view of the overlaps
among them. First, a few preliminary scene-setting remarks about the legal
averments.
Public nature of the rights in question
165. Save for the contractual rights which derive from the ANC Constitution and which
accrue strictly to ANC members, ie the Class A applicants, the conduct of the
respondents has a huge impact on the constitutional and other rights of all citizens
of the Free State province and of the Republic of South Africa, irrespective of their
political affiliation, if any.
166. Given the nature of the South African democracy, the fact that the ANC is the
ruling party at all levels of government and the ANC’s statutory status as a
registered political party, it will be argued that the legitimacy and outcomes of its
elective conferences have a direct and significant bearing on the lives of all South
Africans.
167. These considerations, in turn, place a public duty and obligation on the ANC to
conduct such conferences in a manner which is consistent with the interests of the
public and the constitutional rights affected thereby. 49
168. I am advised that it will accordingly be argued that the conduct dealt with in this
application amounts to the ANC as a juristic person exercising public powers
and/or performing a public function within the meaning of that phrase in both PAJA
and the Constitution of the Republic, making both instruments applicable herein.
Such powers and functions are exercised and performed in terms of the ANC
Constitution as the empowering provision or legal instrument. Legal argument will
be advanced at the hearing in this regard.
Common-law breach of contract : ANC Constitution
169. The legal interest of the Class B persons only relates to these two grounds whilst
that of the Class A persons relates to all the three broad legal grounds relied upon.
170. I am advised that it will be argued that it is trite law that the constitution of a
voluntary association constitutes a contractual agreement as between the
association and its members. In that context, the various violations of the ANC
Constitution detailed above constitute an unlawful breach of contract under the
common law.
Direct constitutional review
171. In terms of section 19(1) of the Constitution (quoted above in paragraph 54.9 ), all
citizens enjoy an inherent and fundamental right to participate in the activities of
the political party of their choice.
172. I am advised that it will be argued that, in the present context, the said rights apply
horizontally. 50
173. Furthermore, it will be argued that by their conduct, the respondents have blatantly
and grossly violated the aforesaid rights of the applicants.
174. Whether or not PAJA applies, the above Honourable Court is enjoined to prevent
the violation of the applicants’ constitutional rights. This can be achieved by the
direct application of, inter alia, sections 8(2), 239 and 34 of the Constitution.
PAJA review
175. In order for the conduct, decisions and the conduct underlying those decisions (or,
where applicable, the failure to take decisions), it is important to lay the factual
basis for a finding that in taking such decisions, the respondents were “exercising
a public power or performing a public function in terms of an empowering
provision”. In order to do this, it will be important to paint, in proper perspective,
the role played by the ANC in South African society and, more specifically, the
impact thereof not only on ANC members, such as the applicants and the
signatories, but on the general public and citizens, whether in the Free State
province or in the country as a whole.
176. I am advised that it will be argued that the ANC as an institution is not just another
political party but one which is at the centre of the social, political and economic
life of every South African. It is also, like other political parties, a central institution
in the functioning of the South African brand of democracy. Democracy, in turn, is
an underlying and fundamental value of the State Africa state. 51
177. The general public, including all South African citizens, have a direct and vested
interest in the proper and orderly running of political parties, not to mention the
ruling party.
178. It is trite that the persons who get elected at the ANC’s provincial and national
conferences will almost definitely end up in the political leadership of the
municipalities, the provinces and the country.
179. To further illustrate the intersections between the conduct of the ANC, the
outcomes of its conferences with the broader public interest, the following factors
must be taken into account.
180. Currently, the first respondent is the Premier of the Free State province.
181. By the same token, the person who will get elected as the President of the ANC
will most certainly become the President of the Republic after the next general
elections.
182. In this way, the public nature and impact of the decisions under consideration in
this matter are undeniable.
183. I am advised that fuller legal argument will be advanced in this regard at the
hearing. This will be done in support of the contention that the decisions at issue
amount to administrative action as defined in PAJA. 52
184. Once it is established that we are dealing in administrative action, it only remains
for me to specify which of the grounds of review listed in section 6 of PAJA will be
relied upon. In summary, the following sections of PAJA will be relied upon:
184.1. Section 6(2)(b)
184.2. Section 6(2)(e)(ii), (iii), (v) and (vi)
184.3. Section 6(2)(f)
184.4. Section 6(2)(g)
184.5. Section 6(2)(h); and
184.6. Section 6(2)(i).
185. In the further alternative, and should it be found that the conduct does not
constitute administrative action, then reliance will be placed on a review based on
the principle of legality and the rule of law in that the conduct of the respondents is
offensive thereto.
186. The above all lays the factual and various legal bases for the relief sought in
Part B. Should it become necessary, the papers will be supplemented with the
leave of the above Honourable Court.
Interdictory relief (Part A)
187. The option of once and for all arguing the merits of the main application will be
explored with the respondents, failing which the applicants will seek the
interdictory relief set out in Part A of the notice of motion. 53
188. I now proceed to deal with the well-known requirements for the granting of an
interdict in order to accommodate that eventuality.
189. The factual averments set out hereunder have relevance for both Parts A and B
and irrespective of whether the interdictory relief may or may not be successfully
and separately pursued.
Clear right
190. Quite clearly, the various rights discussed above satisfy the requirements of a
clear right alternatively a prima facie right open to some doubt. There can be no
doubt about either the existence or the violation of the various rights asserted in
this application.
Irreparable harm
191. Starting with the 1st to the 6th applicants plus the Class A applicants, it is significant
to take into account the denial of their right to influence the policy direction of the
ANC and to elect their political leaders.
192. The conduct of the respondents has a direct bearing on the party’s representation
at the upcoming five-yearly party elective conference in Mangaung. Should the
current unlawfully imposed leadership be allowed to continue, then they will most
certainly use their incumbency further to manipulate and frustrate the democratic
process, such that the real views of the members will continue to be suppressed. 54
193. The consequence of these actions is not only far-reaching but incurable after the
fact. The ripple and multiplier effect of having illegitimate leaders at the helm of
the party are almost impossible to isolate and reverse.
194. Indeed, the motive behind the respondents’ actions is to subvert the course of
democracy and history and to entrench a permanent dictatorship.
195. Similarly, the injurious effects of the alleged conduct on the Class B group of
persons, if not stopped, will impose devastating and irrevocable consequences
upon the Class B group.
196. The general citizenry are likely to be governed not by the rightfully appointed
public representatives but by the beneficiaries of fraudulent conferences and
outcomes thereof.
197. It is difficult to imagine a more compelling situation for the court’s intervention to
arrest the situation and prevent any resort to self-help by interested parties, as well
as any disruptions to the preparations for and running of the upcoming national
conference, which is crucial for the future of the country.
198. If the provincial executive is to remain in office pending the review application, it
can only have a devastating and harmful effect on the rights of the applicants.
199. In the relatively short space of time since its assumption of office, the provincial
executive has already been unilaterally in charge of: 55
199.1. sanctioning the delegates to the national policy conference held on 26-29
June 2012 in Midrand, Johannesburg;
199.2. convened a regional conference for the Motheo region;
199.3. similarly, convened a regional conference for the Thabo Mofutsanyana
region.
200. The next few months leading up to the national conference will also have a huge
bearing on the democratic rights of the applicants and the other class action
participants, in that provincial executive committees will oversee the preparations
for the national conference to be held in Bloemfontein, including:
200.1. the selection of branch and other delegates;
200.2. the audit of membership;
200.3. the nomination of candidates for the new national executive committee and
officials of the ANC;
200.4. the articulation of provincial policy positions; and
200.5. the holding of provincial general councils leading up to the national
conference.
201. The consequences of these actions, if left unchecked and if conducted in the
manner complained of herein, would be irreversibly detrimental to the rights and
interests of the parties involved herein and the public at large. 56
No alternative remedy
202. It will be demonstrated that, apart from self-help, which is undesirable, the
applicants have no real alternative remedy but to seek the intervention of the
above Honourable Court to grant the interdictory relief sought.
203. There are also no internal remedies available since the applicants and other
members of the Class A group have exhausted all internal avenues to resolve the
issues. The correspondence contained in Bundle C bears testimony to this.
204. The 26th respondent has made it abundantly clear that no measures will be taken
to address the concerns of the applicants.
205. Firstly, the 26th respondent has reportedly endorsed the outcomes of the provincial
conference by inviting the “delegates” of the Free State to its recent national policy
conference held on 26 to 29 June 2012.
206. Secondly, the 26th respondent has failed and/or refused to attend to the
correspondence in Bundle C.
207. Thirdly, the correspondence which contains complaints and objections either from
the branches or from Besani has largely been ignored.
208. Fourthly, and more recently, on 30 July 2012, one of the Class A group, Thabiso
Stanley Molosioa (“Molosioa”), managed to secure a meeting with the
secretary-general of the ANC, who is its effective chief executive officer, wherein
he presented the problems dealt with hereinabove and handed him a dossier 57
containing the documentation in Bundle C. Mr Mantashe made it clear at the
conclusion of the meeting that the 26th respondent was satisfied with the outcomes
of the provincial conference and that no further action would be taken in respect
thereof. I attach hereto the confirmatory affidavit of Molosioa, marked “FA45”.
209. As an example of the finality of the 26th respondent’s stance that this matter is
closed, I attach marked “FA46” a page from its website, dated the 25th of June
2012, in which the disputed leadership unlawfully elected at the provincial
conference is reflected as the legitimate provincial leadership without any
qualifications.
210. There are accordingly no alternative internal or external remedies available to the
applicants.
Balance of convenience
211. In the unlikely event that the above Honourable Court finds that no clear rights
have been established, then the applicants will seek only interim relief. It is only in
that eventuality that there will be any need to consider the balance of convenience.
212. Given the blatant nature of the violations in question, the respondents cannot be
heard to say that it is more convenient that the status quo be maintained. The
ANC Constitution specifically makes provision in Rule 12(2)(b) thereof for the
installation of an interim leadership in these types of circumstances. This will
ensure that there is no leadership vacuum between the granting of the order and
the holding of a proper and lawful conference. 58
213. Failure to do so will result in a possible pyrrhic victory for the applicants should it
ultimately be found that the provincial conference was indeed illegitimate.
214. The overwhelming prima facie prospects of success in the main application,
coupled with the huge public interest in the matter, should also be taken into
account in determining the balance of convenience should it be necessary to do
so.
215. The above Honourable Court is entitled also to take into account the huge public
interest in the issues under its consideration.
Timeframes and semi-urgency
216. Although this application has been advisedly brought in the ordinary course, it
would, in my humble view, be convenient to both parties and the public that the
issues be determined expeditiously.
217. It is anticipated that the respondents will be agreeable to this viewpoint, more
particularly in that such an expeditious resolution will ensure that there is a
minimum negative impact on the morale of its paid-up members and the
preparations and smooth running of the upcoming national conference, which is
scheduled to take place in the Free State province.
218. Should this indeed be so, then the applicants’ legal representatives will approach
the respondents’ representatives with a view to agreeing to approach the Judge
President of the above Honourable Court for an expedited hearing and other
related directives pertaining to the further conduct of this matter in the interests 59
and convenience of all interested parties and the above Honourable Court. It is
self-evident that the outcome of this application has far-reaching implications for
and is of interest not only to ANC members countrywide but to the public at large.
219. Should such agreement between the parties not materialise, then the applicants
will deal with the setting down of the matter in due course.
220. Finally, I wish to bring to the attention of the above Honourable Court that although
every effort was made at huge cost to collect all the confirmatory affidavits, in
addition to the class action signatures, logistical difficulties are being encountered
due to the vast geographical nature of the province. In the circumstances, and
with the leave of the court, some of the outstanding confirmatory affidavits will only
be furnished in a supplementary founding affidavit or together with the replying
affidavit. The deponents have already agreed to give their evidence but may not
be physically reachable by the time of the lodgment of these papers. Should any
serious objection be raised to this approach, then the issue will be argued at the
hearing.
Rule 53(1)(b)
221. Insofar as this application is brought in terms of Rule 53 of the Uniform Rules of
Court, the secretary-general of the 26th respondent is, within 15 days hereof, called
upon to furnish a copy of the record. Bundle C already constitutes a large part of
the record. The respondents are specifically required to supplement the record
with, inter alia: 60
221.1. any other relevant correspondence, including replies, if any, to the letters in
Bundle C;
221.2. the attendance register at the provincial conference broken down by region
and by branch;
221.3. the detailed credentials report adopted at the provincial conference;
221.4. all ballots used for the purposes of any elections conducted at the provincial
conference;
221.5. the detailed outcomes of all elections in respect of each position;
221.6. all resolutions adopted at the said conference; and
221.7. the full list of the Free State provincial delegates who attended the national
policy conference held at Gallagher Estate on 26-29 June 2012.
222. All the documents listed above are in the possession of the respondents and it
should accordingly be easy to produce the record within the timelines prescribed in
Rule 53.
Costs
223. Due to the complexity of the legal issues raised herein, it will be submitted that the
costs to be awarded ought to include the costs of the employment of two counsel.
WHEREFORE I pray that it may please the above Honourable Court to grant the order sought in the notice of motion to which this affidavit is attached. 61
______DEPONENT
SIGNED AND SWORN TO before me at on this day of August 2012, the deponent having acknowledged that he knows and understands the contents of this affidavit, that he has no objection to taking the prescribed oath and that he considers the same to be binding on his conscience.
______COMMISSIONER OF OATHS