With less than a month to the ANC Mangaung Conference in December 2012, the Constitutional Court (ConCourt) delivered a judgment that had a bearing on the composition of delegates.
The dispute was over the legitimacy of the party’s provincial executive committee (PEC) in the Free State, which had been elected earlier in June 2012, with Ace Magashule at the helm.
On presentation of the report on the conference proceedings, the ANC national executive committee (NEC) endorsed it, but not all the provincial branch leaders did. Six of them, from four of the ANC’s five regions in the province, and led by Mpho Ramakatsa, complained of irregularities.
Ramakatsa’s group essentially charged that the June 2012 provincial conference was illegitimate. Severe flaws marked both the preparations and the conference itself. Some regions were given more delegates than allowed by the verified voters’ roll; branches were not given a preliminary membership audit report to scrutinise in order to submit queries, if they had any; some branches were disqualified from attending, when in fact they were in good standing; and bogus delegates were sent to represent branches that were disqualified.
Responding to the allegations, Magashule’s PEC, together with the party’s secretary general, Gwede Mantashe, either denied the allegations or simply claimed not to recall. They were not convincing, however. Their “bare denials”, as Justices Dikgang Moseneke and Chris Jafta wrote, “do not rise to the level of disputes of fact”.
Consequently, the ConCourt nullified the outcome of the provincial conference, stripping the provincial party of its leadership. In its stead, a provincial task team (PTT) was appointed to oversee nomination of delegates for the party’s national conference in December 2012. Magashule was not at the helm to steer the nomination process towards Jacob Zuma in his presidential race against Kgalema Motlanthe.
Ultimately, however, the impact of Free State proved inconsequential in the outcome of the presidential race. Zuma won overwhelmingly. He had the support of most provinces, especially the biggest in terms of party membership, KwaZulu-Natal (KZN).
Just as it happened almost five years ago, a court is now considering a dispute related to the legitimacy of the outcome of the KZN provincial conference held in November 2015. Brought by Lawrence Dube and four of his comrades, the charges in this case are similar to those brought by Ramakatsa’s group. And the verdict will be delivered possibly next month, just three months ahead of the elective national conference. Unlike the Free State five years ago, a decision annulling Sihle Zikalala’s PEC would have a decisive influence on the outcome of the presidential race in December. KZN membership remains the biggest in the party and the provincial PEC is rooting for Nkosazana Dlamini-Zuma.
So, what are the prospects of the KZN High Court reaching the same verdict as the ConCourt five years ago? It is highly likely, based purely on the sameness of allegations, a non-factual defence, and the propensity of verdicts to follow precedence. Supported by 1233 paid-up members of the ANC, Dube’s group allege that preparations for the 2015 KZN provincial conference were fraught with violations of the ANC constitution and guidelines for organising conferences.
Improprieties included branches not receiving a preliminary nor final audit of branches to check if they were properly vetted. They were simply told they did not qualify to attend the provincial conference. Others were told they qualified to attend, only to be turned away at the conference. Some of those who were dubiously turned away were replaced “by bogus duplicate delegates from their branches who had not been lawfully elected as such but who were recognised by the Credentials Committee on the day, and allowed, quite unlawfully, to represent those branches at the conference, and, obviously, to vote on their behalf”. There were 17 such bogus delegates.
Perhaps even more audacious was the discrepancy between the Adopted Credentials Report and the verified voters’ roll. One set of branches numbering 24, for instance, was “deprived of representation by a total of 36 delegates to which they were entitled”. By contrast, another set of 31 branches were allocated 44 more delegates than they deserved.
What makes the case even more precarious for the incumbent in KZN is that the very sitting of the conference was improper. Because it was called earlier than prescribed by the constitution, its sitting should have been endorsed by one-third of the branches. Dube contends that never happened, nor did the NEC give its formal approval for the special conference.
In its defence, Zikalala’s PEC offers an alternative interpretation of the ANC constitution, a different version of what happened, and complains that a negative verdict would inconvenience the ANC. They contend that the constitution is not emphatic that a conference should be held every fourth year, but that there shouldn’t be more than one in four years. If one believes this argument, it means the ANC doesn’t attach any import to the duration of elected leaders’ term of office. This implies they could be removed anytime, so long as the party does not hold two conferences within the space of four years. Surely this logic can’t hold.
Zikalala also pleads with the court not to annul his election as that would cost him his job. Together with members of his PEC, Zikalala explained to the full bench of judges he was appointed to the provincial cabinet on account of his election. Zikalala wants the judges to help him keep his job. Apparently judges don’t really do sympathy. Their decisions are guided by facts.
For Zikalala’s PEC to win the case, therefore, their version of events must be factual. This requires a paper trail. Judges don’t attach much import to word-of-mouth. This is where Zikalala is likely to flounder. Thembeka Ngcukaitobi, the lawyer who Zikalala called a “counter-revolutionary”, would not have presented a case that submits false claims. In short, it doesn’t look good for Zikalala’s PEC.
What then happens in the likely event that Zikalala’s PEC is annulled? A PTT will be installed to prepare for an elective provincial conference. But this won’t happen between September and the national conference in December. There’s not enough time. That means the PTT will oversee the election of delegates to the national conference. This process is likely to be monitored closely by Mantashe’s office to avoid irregularities that could throw the legitimacy of the conference into question. A fair process is not good for Dlamini-Zuma’s prospects of winning.
This contest is far from over!
Mcebisi Ndletyana is associate professor of politics at the University of Johannesburg.
Things not looking good for Zikalala’s PEC
The dispute was over the legitimacy of the party’s provincial executive committee (PEC) in the Free State, which had been elected earlier in June 2012, with Ace Magashule at the helm.
On presentation of the report on the conference proceedings, the ANC national executive committee (NEC) endorsed it, but not all the provincial branch leaders did. Six of them, from four of the ANC’s five regions in the province, and led by Mpho Ramakatsa, complained of irregularities.
Ramakatsa’s group essentially charged that the June 2012 provincial conference was illegitimate. Severe flaws marked both the preparations and the conference itself. Some regions were given more delegates than allowed by the verified voters’ roll; branches were not given a preliminary membership audit report to scrutinise in order to submit queries, if they had any; some branches were disqualified from attending, when in fact they were in good standing; and bogus delegates were sent to represent branches that were disqualified.
Responding to the allegations, Magashule’s PEC, together with the party’s secretary general, Gwede Mantashe, either denied the allegations or simply claimed not to recall. They were not convincing, however. Their “bare denials”, as Justices Dikgang Moseneke and Chris Jafta wrote, “do not rise to the level of disputes of fact”.
Consequently, the ConCourt nullified the outcome of the provincial conference, stripping the provincial party of its leadership. In its stead, a provincial task team (PTT) was appointed to oversee nomination of delegates for the party’s national conference in December 2012. Magashule was not at the helm to steer the nomination process towards Jacob Zuma in his presidential race against Kgalema Motlanthe.
Ultimately, however, the impact of Free State proved inconsequential in the outcome of the presidential race. Zuma won overwhelmingly. He had the support of most provinces, especially the biggest in terms of party membership, KwaZulu-Natal (KZN).
Just as it happened almost five years ago, a court is now considering a dispute related to the legitimacy of the outcome of the KZN provincial conference held in November 2015. Brought by Lawrence Dube and four of his comrades, the charges in this case are similar to those brought by Ramakatsa’s group. And the verdict will be delivered possibly next month, just three months ahead of the elective national conference. Unlike the Free State five years ago, a decision annulling Sihle Zikalala’s PEC would have a decisive influence on the outcome of the presidential race in December. KZN membership remains the biggest in the party and the provincial PEC is rooting for Nkosazana Dlamini-Zuma.
So, what are the prospects of the KZN High Court reaching the same verdict as the ConCourt five years ago? It is highly likely, based purely on the sameness of allegations, a non-factual defence, and the propensity of verdicts to follow precedence. Supported by 1233 paid-up members of the ANC, Dube’s group allege that preparations for the 2015 KZN provincial conference were fraught with violations of the ANC constitution and guidelines for organising conferences.
Improprieties included branches not receiving a preliminary nor final audit of branches to check if they were properly vetted. They were simply told they did not qualify to attend the provincial conference. Others were told they qualified to attend, only to be turned away at the conference. Some of those who were dubiously turned away were replaced “by bogus duplicate delegates from their branches who had not been lawfully elected as such but who were recognised by the Credentials Committee on the day, and allowed, quite unlawfully, to represent those branches at the conference, and, obviously, to vote on their behalf”. There were 17 such bogus delegates.
Perhaps even more audacious was the discrepancy between the Adopted Credentials Report and the verified voters’ roll. One set of branches numbering 24, for instance, was “deprived of representation by a total of 36 delegates to which they were entitled”. By contrast, another set of 31 branches were allocated 44 more delegates than they deserved.
What makes the case even more precarious for the incumbent in KZN is that the very sitting of the conference was improper. Because it was called earlier than prescribed by the constitution, its sitting should have been endorsed by one-third of the branches. Dube contends that never happened, nor did the NEC give its formal approval for the special conference.
In its defence, Zikalala’s PEC offers an alternative interpretation of the ANC constitution, a different version of what happened, and complains that a negative verdict would inconvenience the ANC. They contend that the constitution is not emphatic that a conference should be held every fourth year, but that there shouldn’t be more than one in four years. If one believes this argument, it means the ANC doesn’t attach any import to the duration of elected leaders’ term of office. This implies they could be removed anytime, so long as the party does not hold two conferences within the space of four years. Surely this logic can’t hold.
Zikalala also pleads with the court not to annul his election as that would cost him his job. Together with members of his PEC, Zikalala explained to the full bench of judges he was appointed to the provincial cabinet on account of his election. Zikalala wants the judges to help him keep his job. Apparently judges don’t really do sympathy. Their decisions are guided by facts.
For Zikalala’s PEC to win the case, therefore, their version of events must be factual. This requires a paper trail. Judges don’t attach much import to word-of-mouth. This is where Zikalala is likely to flounder. Thembeka Ngcukaitobi, the lawyer who Zikalala called a “counter-revolutionary”, would not have presented a case that submits false claims. In short, it doesn’t look good for Zikalala’s PEC.
What then happens in the likely event that Zikalala’s PEC is annulled? A PTT will be installed to prepare for an elective provincial conference. But this won’t happen between September and the national conference in December. There’s not enough time. That means the PTT will oversee the election of delegates to the national conference. This process is likely to be monitored closely by Mantashe’s office to avoid irregularities that could throw the legitimacy of the conference into question. A fair process is not good for Dlamini-Zuma’s prospects of winning.
This contest is far from over!
Mcebisi Ndletyana is associate professor of politics at the University of Johannesburg.
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