Medupe and Others v African National Congress and Others (UM160/2022) [2023] ZANWHC 63 (23 May 2023)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: UM160/2022

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

In the matter between:

LEBOGANG MEDUPE

1ST Applicant

LESEGO SERAPELWANE

2ND Applicant

PUSO MOENG

3RD Applicant

SELLO MOLEFE

4TH Applicant

ITUMELENG MOSWANE

5TH Applicant

And

AFRICAN NATIONAL CONGRESS

1st Respondent

NONO MALOYI

2ND Respondent

LAZZY MOKGOSI

3RD Respondent

LOUIS DIREMELO

4TH Respondent

VIOLA MOTSUMI

5TH Respondent

SELLO LEHARI

6TH Respondent

Heard: 17 MARCH 2023

Delivered: This judgment is handed down electronically by circulation to the parties through their legal representatives’ email addresses. The date for the hand-down is deemed to be on 23 MAY 2023.

ORDER

The following order is made

1. The application is dismissed.

2. The applicants are ordered to pay the costs of this application which shall include costs consequent upon employment of two counsel, jointly and severally, the one paying others to be absolved.

JUDGMENT

DJAJE DJP

[1] This matter first came before court on 25 August 2022 as an urgent application, where the applicants sought an order in the following terms:

“1. That the application be heard as an urgent application in accordance with Rule 6 (12) of the Uniform Rules of this Honourable Court and that the applicant's failure to comply with the rules relating to forms and service be condoned.

2. That it be declared that the notice calling for the ANC's 9th Provincial Conference of the North West from the 12th - 14th August 2022 is unlawful, invalid and of no force and effect.

3. That it be declared that the ANC's decision of the 13th August 2022 to usurp the powers and functions of the ANC's 9th Provincial Conference after the Court had declared on the 12th August 2022 under case number: UM 152 I 2022 that the term of the IPC of the North West Province had lapsed is in violation of the ANC Constitution and is unlawful and be set aside.

4. That it be declared that the ANC's 9th Provincial Conference of the North West that took place on the 12th 14th August 2022 and subsequently postponed to the 26th 28th August 2022 is held in violation of the ANC Constitution as well as the Court order of the 12 August 2022 under case number: UM 152 I 2022 and that the said Provincial Conference, its decisions / resolutions and/or outcome are unlawful and be set aside. ,

5. That the ANC be interdicted from continuing and/or finalising the ANC's 9th Provincial Conference of the North West scheduled for the 26 —28 August 2022.

6. That the ANC be ordered to appoint an interim structure in terms of the ANC Constitution in the stead of the North West Provincial Executive Committee, pending the election of a lawfully constituted Provincial Executive Committee of the ANC in the North West Province.

7. That the first Respondent be ordered to pay the costs of this application on an attorney and own client scale, including the costs occasioned by the employment of two counsel.

8. That the second to sixth Respondents be ordered to pay the costs of this application only in the event of opposition jointly and severally with the first respondent, the one paying the other to be absolved, on an attorney and own client scale, including the costs occasioned by the employment of two counsel.

9. Such further and/or alternative relief as the above Honourable Court deems fit.”

[2] On the date of hearing, the matter was struck from the roll due to lack of urgency. The applicants are now approaching this Court on the normal motion roll. As some of the relief initially sought in the urgent application have been rendered moot, the applicants only persisted with the following relief against the respondents:

“56.1 Declaring that the notice calling for the ANC’s 9th Provincial Conference of the North West from the 12th – 14th August 2022 is unlawful, invalid and of no force and effect.

56.2 Declaring the ANC’s decision of the 13th August 2022 to usurp the powers and functions of the ANC’s 9th Provincial Conference after the Court had declared on the 12th August 2022 under case number: UM152/2022 that the term of the IPC of the North West Province had lapsed is in violation of the ANC Constitution and is unlawful and be set aside.

56.3 Declaring the ANC’s 9th Provincial Conference of the North West that look place on the 12th – 14th August 2022 and subsequently postponed to the 26th – 28th August 2022 to be held in violation of the ANC Constitution and that the said Provincial Conference, its decisions/ resolutions and/or outcome are unlawful and be set aside.

56.4 Ordering the ANC to appoint an interim structure in terms of the ANC Constitution in the stead of the North West Provincial Executive Committee, pending the election of a lawfully constituted Provincial Executive Committee of the ANC in the North West Province.”

[3] It is important to sketch the background before dealing with the issues to be determined in this matter. The applicants herein are members in good standing of the first respondent in the North West Province. The second to sixth respondents are the members of the Provincial Executive Committee of the first respondent in the North West. The said respondents were elected as such at the 9th Provincial Conference held on 12-14 August 2022, in Rustenburg, in the North West Province.

[4] In August 2018 the National Executive Council (“NEC”) of the African National Congress (“ANC”) took a decision to disband the Provincial Executive Committee (“PEC”) of the North West Province. Thereafter the Provincial Task Team (“PTT”)

was appointed on 20 September 2018. The disbanded PEC approached the South Gauteng Court challenging the decision of the NEC to disband them and the appointment of the PTT. On 5 February 2019 that Court found that the decision to disband the PEC was unlawful and set aside. Appeal processes followed which prompted the NEC to appoint the Interim Provincial Committee (“IPC”) for the North West Province in August 2019.

[5] The applicants’ case is that the term of office of the IPC lapsed during May 2020, after a period of nine (9) months in terms of Rule 12.2.4 of the ANC Constitution. As a result of this, the argument by the applicant is that the Provincial Conference was unlawfully convened by an IPC whose term of office had expired.

[6] The first respondent contends that due to the COVID 19 pandemic in South Africa and the restrictions on the gatherings introduced, the NEC postponed all conferences including that of the North West Province. The government declared a state of disaster from 15 March 2020 which was extended until it came to an end in April 2022. During that period the ANC could not conduct its normal business including the holding of an elective conference in the North West. This then resulted in the NEC extending the term of office of the IPC from June 2020 to August 2022. This started at a meeting on 27 and 28 June 2020, where it was resolved as follows:

“(1) No, branch, region or province should be summarily disbanded because their term of office expired. The NEC will treat this as force majeure, pending the trajectory of the pandemic;

(2) The National General Council, all provincial and regional conferences, as well as branch biennial general meetings should be postponed indefinitely in compliance with regulations made in terms of the National Disaster Management Act, subject to regular and ongoing assessments of the regulatory and health situation prevailing in the country.”

[7] At the NEC meeting held from 31 July 2020 to 2 August 2020, the NEC ratified the extension of the IPC by stating as follows:

“The NEC ratified the letter from the SG extending the IPC mandate for a further 3 months, and agreed that, it should be extended indefinitely in accordance with the decision of the previous NEC which postponed all conferences

until further notice, subject to ongoing assessments on the development of the COVID-19 pandemic.”[My emphasis.]

[8] Thereafter, various meetings were held to extend the term of the IPC, on 28-30 August 2020, 28 February 2022, 25 March 2022 and July 2022. The minutes of the various meetings were attached to the answering affidavit. However, the minutes of the meeting of 4 July 2022 were not attached wherein the NEC extended the term of the IPC to August 2022. The only document that deals with an extension of the term of office of the IPC to August 2022 is a letter written to the Co-ordinator of the IPC on 4 July 2022, by Mr Mashatile in which the following was stated: “(4) The National Officials recommended to the NWC meeting on 16 May 2022 that the period within which the election of the North West PEC must be held be extended to the end of August 2022, subject to the submission of monthly progress reports. (5) NEC Meeting on 2-4 July 2022 noted this report and supported the proposal that the period within which the election of the PEC of the ANC North West Province must be held should be extended to the end of August 2022, subject to the submission of monthly progress reports.” (My emphasis)

In addition, the applicants referred to the ANC NEC calendar where there is no reflection of any NEC meeting scheduled for 4 July 2022.

[9] The applicants’ hurdle on the issue of the resolution of 4 July 2022 is that they could not produce any evidence that such a meeting did not take place. Their reliance on the calendar not reflecting a meeting on the said day is neither here nor there. It could not be argued that such a meeting did not take place and that no resolution to extend the term of office of the IPC to August 2022 was taken. The argument by the applicants that the meeting or the resolution is suspicious, can also not be relevant without any

substantiation by evidence. The correspondence referred to above refers to a resolution by the NEC to extend the term of office of the IPC. In the absence of any evidence that such does not exist, then the applicants’ argument stands to fail. The only conclusion is that there was a decision by the NEC on 4 July 2022 to extend the IPC term of office to August 2022.

[10] In dealing with the resolutions by the NEC to extend the term of office of the IPC, the crucial question is whether the NEC, in doing so, complied with Rule 12.2.4 of the Constitution. Rule 12.2.4 provides that:

“12.2 Without prejudice to the generality of its powers, the NEC shall:

12.2.4 Ensure that the Provincial, Regional and Branch structures of the ANC and the Leagues function democratically and effectively. (The NEC may suspend or dissolve a PEC where necessary.) The suspension of a PEC shall not exceed a period of 3(three) months. The election of a PEC, which has been dissolved, shall be called within 9 (nine months) from date of dissolution. The NEC must appoint an interim structure during the period of suspension or the dissolution of the PEC to fulfil the functions of the PEC.”

[11] It is common cause that the NEC dissolved the PEC in 2019 and the IPC was appointed. The IPC was the interim structure as referred to in the Rule. This interim structure was appointed to perform the functions of the PEC. The term of the IPC was not to exceed a period of nine (9) months. This is where the issue of the extensions by the NEC comes in. The case by the respondents is that the expiring of the term of the IPC happened during the time of the world wide pandemic where there were restrictions of gatherings imposed, and as such no elective conference could take place. This is what necessitated the resolutions by the NEC to extend the term of office of the IPC.

[12] Rule 12.2.4 does not make reference to the NEC being authorised to extend the term of office of the interim structure during the suspension of the PEC. At the expiry of the nine (9) months’ period, the election of the PEC should have taken place. This much is clear. However, as alluded to, this could not happened. This was at the height of the unprecedented world-wide pandemic of COVID in May 2020. It is common cause that during this time no gatherings were allowed. As such, it would not have been possible to convene an elective conference in the Province. In which case, the Province would then be without leadership to fulfil the functions of the PEC. The NEC in terms of the ANC Constitution has to ensure that the Provincial structures of the ANC function effectively, even during a

vis major or force majeure. As such the NEC could not have allowed a lacuna to exist in the North West Province, where there would be no leadership for the organisation. In resolving to extend the term of office of the IPC, the NEC acted in terms of the ANC Constitution to have continuity in the leadership of the Province. By so doing, the NEC did not act unlawfully in any manner whatsoever and acted in accordance with its constitutional mandate.

[13] In dealing with the issue of a lacuna where no leadership exists, the court in the matter of Pilane and Another v Pheto and Others (158/2011) [2011] ZANWHC 63 (30 September 2011) by Hendricks J (as he then was) held as follows:

“[18] There can never be a lacuna in that no Traditional Council exists to run the affairs of the traditional community. Although their term of office expired on 24 September 2010, the members of the Traditional Council must remain in office until the process of re-composition of Traditional Council is finalized.

[19] This much was conceded to by Adv Bredenkamp SC on behalf of the Repondents, which concession was in my view well made. For the sake of good governance, a council whose term of office has expired should continue to be in existence until it is replaced by a newly elected council…..” [My emphasis]

[14] The judgment in Pilane v Pheto, supra, deals with avoiding a lacuna where a term of office of a council expires, to avoid lack of good governance. In this matter, the term of the IPC had expired after nine (9) months and because no conference could be held. The NEC had to step in to ensure continuity and good governance of the ANC in the North West Province.

[15] The applicants in this matter, as members of the ANC, were fully aware of the expiry of the office of the IPC and the resolutions extending it. It is axiomatic that nothing was done by them since May 2020 until on the eve of the conference. This was one of the reasons why the matter was struck off the roll due to lack of urgency. In addition, the applicants never challenged the NEC resolutions to extend the term of office of the IPC. Even in this application, there is no relief sought to review and set aside the said resolutions. Until such time that those resolutions are set aside, they have legal consequences affecting the term of office of the IPC. This is what was held in Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) “….Until the Administrator’s approval (and thus also the consequences of the approval) is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked. The proper functioning of a modern state would be considerably compromised if all administrative acts could be given effect to or ignored depending upon the view the subject takes of the validity of the act in question. No doubt it is for this reason that our law has always recognised that even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside”.

[16] The decisions of the NEC in extending the IPC term of office stands. As such, the applicants cannot successfully attack the decisions taken by the IPC, when its legal validity depends on the legal validity of the decisions of the NEC.

[17] Based on the arguments above, the applicants’ case was that the ANC’s 9th Provincial Conference of the North West was unlawful. In addition, the applicants rely on the order granted out of this Court by Snyman J, where it was held that the term of office of the IPC expired on 29 April 2020 and that the members of the IPC had no voting powers at the Conference. I have already dealt with the resolutions by the NEC extending the term of office of the IPC above from May 2020 until August 2020. In this instance, the IPC lawfully issued a notice for the 9th Provincial Conference as its term of the office was extended to August 2022. The fact that the term of office of the IPC was lawfully extended by the NEC lends credence and legitimacy to the fact that the 9th Provincial Conference could be and therefore was legally arranged by the IPC.

[18] After the Court ordered on 12 August 2022 that the members of the IPC had no voting powers at the Provincial Conference, (and may I add rightly so) the office of the Secretary General, Mr Mashatile, issued a statement on 13 August 2022 as follows:

“ii) The Court order will be observed and therefore the ANC IPC NW members will not vote as stipulated in the court order;

iii) The North West Province Conference will therefore proceed under the directive and leadership of the NEC deployees acting in accordance (i) above and in terms of the directive of the NEC;

iv) The NW IPC will not play any further role going forward as a structure;

v) Noting that the term of office of the IRC’s had expired, regional representatives of the Regions will participate in the Conference as non-voting delegates;

vi) Members of the IPC who have been serving as members of the interim structure since 2018 will be called upon by the NEC to present reports to this conference;

vii) Credential of the Conference will be recorded as a decision of conference after taking into account the stated context and decisions above;

viii) The NEC deployees will oversee the conference until finalization with the support of former IPC and IRC Members”

[EMPHASIS ADDED]

[19] The applicants argued that the NEC is not authorised by the ANC Constitution to convene a Provincial Conference or for a Provincial Conference to proceed under the directive and leadership of NEC deployees. As such arguing that the conference was convened unlawfully and proceeded unlawfully in violation of the Constitution of the ANC. I respectfully disagree.

[20] The applicants further argued that the NEC did not convene a meeting between the evening of 12 August 2022 and the issuing of the statement by Mr Mashatile, and as such the statement was not a resolution of the NEC. For this ground to succeed, they should establish that some of the NEC deployees issued directives violating the ANC Constitution, as a result of the statement issued by the Secretary General. This did not happen.

[21] The Constitutional Court in Ramakatsa and Others v Magashule and Others [2012] ZACC 1; 2013(2) BCLR 202 (CC) held that:

“Section 19 of the Constitution does not spell out how members of a political party should exercise the right to participate in the activities of their party. For good reason this is left to political parties themselves to regulate. These activities are internal matters of each political party. Therefore, these parties are best placed to determine how members would participate in internal activities. The various Constitutions of political parties are instruments which facilitate and regulate participation by members in the activities of a political party.”

[22] The ANC through its Constitution regulates how the organisation should function and the applicants, as members in good standing of the organisation, are aware of this fact. The NEC is the highest organ of the ANC and has the authority to lead the organisation. Rule 12.2.20 provides that the NEC shall: “Take all steps necessary or warranted for the due fulfilment of the aims and objectives of the ANC and the due performance of its duties”. It cannot be denied that the NEC has the responsibility to ensure that the aims and objectives of the organisation are observed at all times. It cannot be a violation of the ANC Constitution, if the NEC assumes a role of ensuring fulfilment of the objectives of the ANC by providing guidance and leadership at a Provincial Conference. At the time of the Provincial Conference, there was no PEC and the court on 12 August 2022 had declared that the term of office of the IPC had expired. As such the NEC as the highest organ of the ANC had to take all steps necessary to ensure the fulfilment of the objectives of the ANC. It cannot be argued that there was a hostile take-over by the NEC, when there was no provincial leadership at the time.

[23] In addition to the above, Rule 17 of the ANC Constitution states as follows:

“PROVINCIAL CONFERENCE

17.1 Subject to the decisions of the National Conference and the National General Council, and the overall guidance of the NEC, the Provincial Conference shall be highest organ of the ANC in each Province.

17.2 The Provincial Conference shall:

17.2.1 Be held at least once every 4 (four) years and more often if requested by at least one third of all Branches in good standing in the Province.

17.2.2 Be composed of:

(i) Voting delegates as follows:

17.2.2.1 At least 90% (ninety percent) of the delegates at the Conference shall be from Branches, elected at properly constituted Branch General Meetings. The number of delegates per Branch shall be in proportion to their paid up membership, provided that each Branch in good standing shall be entitled to at least 1 (one) delegate.

17.2.2.2 All member of the Provincial Executive Committee shall attend ex-officio as full participants in and as delegates to the Conference.

17.2.2.3 The remainder of the voting delegates at the Conference shall be from among members of the REC’s, the ANC Veterans’ League, the ANC Youth League and the ANC Womens’ League, as allocated by the PEC.

(ii) Non-voting delegates

17.2.2.4 The PEC may invite individuals, who have made a special contribution to the struggle or who have special skills or experience to attend the Conference. In addition, the PEC shall permit representation as non-voting delegates to structure, which do not have the minimum requirement to form a Branch.

Provincial Conference shall:

17.2.2.5 Appoint a Conference Preparatory Committee shall circulate Conference information in advance, determine the procedure for the selection of delegates and indicate how the provincial membership can ensure that their concerns are on the agenda;

17.2.2.6 Determine its own procedure in accordance with democratic principles and practices;

17.2.2.7 Vote on key questions by secret ballot if at least one third of the delegates at the Provincial Conference demand it; and

17.2.2.8 Vote for the election of the PEC by secret ballot. Each voting delegate shall vote once in each ballot.

17.3 The Provincial Conference shall:

17.3.1 Promote and implement the decisions and policies of the National Conference, the National General Council, the NEC and the NWC;

17.3.2 Receive and consider reports by the Provincial Executive Committee, which shall include a report on the work and activities of the ANC Veterans’ League, the ANC Women’s League and the ANC Youth League in the Province, and the Treasure’s report;

17.3.3 Elect the Provincial Chairperson, Secretary, Deputy Secretary, Treasurer and the 30 (thirty) additional members of the Provincial Executive Committee, who will hold office for four (4) year. (The Provincial Secretary shall be a full-time functionary of the Organisation);

17.3.4 Carry out and develop the policies and programmes of the ANC in the Province;

17.3.5 Have the right and power to review, ratify, confirm, alter or rescind any decision taken by any of the constituent structures or officials of the ANC in the Province; and

17.3.6 Have the power to elect or appoint any commission or committee and assign specific tasks and duties to such commission or committee.

17.4 A member elected to the PEC shall resign from any position held in a lower structure in the ANC.”

[24] This Rule states that the Provincial Conference is the highest organ of the ANC in each Province, subject to the guidance of the NEC, National General Council and the National Conference. The guidance of the NEC in a Provincial Conference is provided for in the Constitution of the ANC and cannot be a violation. It is also important to note the provisions of Rule 17.3.1, that the Provincial Conference shall promote and implement the decisions and policies of the National Conference, National General Council, NEC and the NWC. This rule further recognises the important role of the NEC in each Provincial Conference. The applicants’ argument of the Provincial Conference being unlawful on the basis that the NEC took over, is without merit and stands to fail.

[25] The applicants in this matter have not made out a case as prayed for in paragraph 2 above.

[26] It is trite that costs follow the result, and in this matter the applicants should pay the costs of the respondents, jointly and severally the one paying the other to be absolved. This matter is one where the employment of senior counsel was required and such costs should include the costs of two counsel.

Order

[27] Consequently, the following order is made:

2. The applicants are ordered to pay the costs of this application which shall include costs consequent upon the employment of two counsel, jointly and severally, the one paying others to be absolved.

J.T. DJAJE

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

DATE OF HEARING: 17 MARCH 2023 DATE OF JUDGMENT: 23 MAY 2023 COUNSEL FOR APPLICANT: ADV M SNYMAN SC with ADV MPYA COUNSEL FOR 1ST RESPONDENTS: ADV A SAWMA SC COUNSEL FOR 2ND RESPONDENTS: ADV M RAMAILI SC