Former KZN Premier Senzo Mchunu
Here’s the full judgement of the Pietermaritzburg High Court which declared the Kwazulu Natal ANC elective conference of 2015 null and void.
There are many lessons to learn for the ANC, its branches and structures.
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO: 7904/2016 P
Coram: Koen J (Balton et Chetty JJ concurring)
Heard: 16 and 17 August 2017
Delivered: 12 September 2017
O R D E R
- The Eighth KwaZulu-Natal Provincial Elective Conference of the African National Congress held at Pietermaritzburg from 6 to 8 November 2015 and decisions taken at that conference are declared unlawful and invalid.
- The Thirty-Eighth Respondent is directed to pay one half of the Applicants’ costs of the application, such costs to include the costs of two counsel.
J U D GEMENT ___________________________________________________
INTRODUCTION: The eighth provincial elective conference (‘PC’) of the African National Congress (‘ANC’) for the Province of KwaZulu-Natal (‘KZN’) was held from 6 to 8 November 2015. Its propriety is the subject of dispute in this application.  The First, Second, Fourth and Fifth Applicants (‘the Applicants’), all members of the ANC, in their Notice of Motion seek the following order:
‘(a) That the 8th KwaZulu-Natal Provincial Elective Conference of the African National Conference held at Pietermaritzburg on 6 to 8 November 2015 and its decisions, resolutions and elections are declared unlawful and invalid and, as such, are set aside;
(b) Declaring that the recognition, approval and/or endorsement by the ANC (the Thirty-Ninth Respondent) of the aforesaid Provincial Elective Conference, its decisions, resolutions and elections, are likewise declared unlawful, invalid and of no force or effect’;
(c) That’s (sic) the costs of the application are to be paid by the Thirty Eighth Respondent, the ANC, jointly and severally with any other party unsuccessfully opposing it, including the costs of two counsel.’ In Ramakatsa and Others v Magashule and Others (‘Ramakatsa’), the Constitutional Court in regard to a similar attack on the propriety of the Free State provincial conference of the ANC held from 21 to 24 June 2012, said the following in regard to the relief claimed:
‘ In our view, a declaration that the provincial elective conference of ANC and the decisions taken at the conference are unlawful and void should suffice. We emphasise that the declaration of invalidity applies only to the Provincial Conference. The declaratory order we make does not relate to or affect the rights of delegates who have been elected at properly constituted branch general meetings of the Free State province to serve as delegates at any other conference of the party.’ No doubt influenced and guided by similar considerations, by the time this application came to be argued, the relief sought by the Applicants in the alternative to that originally sought in the Notice of Motion, as in Ramakatsa, was confined to an order that:
‘The Eighth KwaZulu-Natal Provincial Elective Conference of the African National Congress held at Pietermaritzburg on 6 to 8 November 2015 and its decisions and resolutions are declared unlawful and invalid.’ The basis for seeking the aforesaid relief, whether as initially couched or confined to the alternative, in broad terms is:
(a) That the holding of the PC was unlawful as, contrary to the requirements of rule 17.2.1 of the ANC constitution, it had not been requested by at least one third of all branches in the province of KZN; and/or
(b) That the PC was affected by various material irregularities which occurred during the pre-conference period and/or at the conference itself relating to the auditing of branch membership, branches being allowed inadequate time for remedying any errors found, insufficient time being allowed for appeals against findings of the auditing committee, discrepancies in the accreditation of delegates, and the manipulation of the voting results at the conference.
There are various material factual disputes arising in respect of the irregularities alleged by the Applicants referred to in sub-paragraph (b) above. Confronted with that reality, the Applicants have nevertheless elected to argue the application on the papers, accepting that material factual disputes must be resolved in favour of the Respondents in accordance with the test espoused in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd. This judgment proceeds on that basis.
BACKGROUND: The seventh provincial conference (‘seventh PC’) of the ANC in KZN was held from 11 to 13 May 2012.  At the beginning of March 2015, the KZN Provincial Executive Committee (‘PEC’) proposed to commence preparations for a conference to be held from 25 to 27 September 2015, which the National Executive Committee (‘NEC’) refused. In August 2015, the PEC re-approached the NEC for permission to hold the PC on 6 to 8 November 2015. Such permission was granted by the NEC at its meeting of 18 to 20 September 2015.  A document entitled ‘WHAT CONSTITUTES A LEGITIMATE ANC CONFERENCE’ relied on by the Applicants stresses the need to understand the fundamental processes and procedures that constitute a conference.
It inter alia provides in one part as follows:
‘Tabulated hereunder are certain procedural challenges that might be encountered along the way when attempting to host a successful Conference. It is recommended that if the following primary principles are adhered to then such challenges may be averted.’ (My emphasis)
In respect of the category of ‘MEMBERSHIP’, a sub-category of ‘Members in good standing but not captured on membership roll’ recommends, as a primary principle, that ‘Branches should be given the membership roll two weeks before the BGM date to ensure that all members have been correctly captured.’ The terms of that document are not dissimilar to a similarly titled annexure introduced by the Respondents in the answering affidavit as to what they contend constitutes a legitimate ANC conference, save that their document is more extensive in its terms and in places couches requirements in more peremptory terms. As the Respondents’ version is the one to prevail in the case of any material conflict, it is the contents of that document which is reproduced more fully below. It provides:
‘KEY ELEMENTS CONSTITUTING THE CONFERENCE
PRE CONFERENCE PROCESSES
The ANC Conference is an outcome of logical steps in a process seeking to ensure organizational readiness, maintenance of legitimacy and integrity of such process. Such pre-conference processes have to meet the time lines set for each of the following steps.
Verification of Membership:
This checks the status of members in branches to ascertain if a member qualifies to be a member or to participate in the processes of the conference.
Status of Branches:
Membership and term of office of the BEC determines if the branch qualifies both to be a branch and therefore participate in the processes of the conference.
Branch is allowed to effect corrections and to change to improve its status.
Allocation of Delegates:
Delegates are allocated proportionally in terms of membership.
Convening of BGM’s & BBGM’s:
Convened within the time line set by higher structures.
Verifications of Constitutionality of BGM’s:
Checking if BGM’s met all constitutional requirements for BGM’s.
For minor shortcomings that may have occurred in BGM’s.
The conference is convened if there is a minimum of 70% branches that have successfully completed all steps in the pre process for the conference.
Running of intensive Political Education in preparation for conferences including allowing for policy proposals by branches.
Read copy of judgement here High Court Judgemen