Mgabadeli and Others v African National Congress and Others (EL1303/2017, ECD3703/2017) [2017] ZAECGHC 131 (12 December 2017)

IN

THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO. EL1303/2017

ECD3703/2017

In the matter between:

NOMAWETHU

MGABADELI 1st Applicant

BULELWA MADIKIDA 2nd Applicant

MTETISWA

BETHWELL JIJINGUBO

3rd Applicant

NONTLAHLA

MAJOLA

4th Applicant

NTELWA

NOMPILO

5th Applicant

NOTABILE

XHATE 6th Applicant

BAYETE

THABALAZA 7th Applicant

JAYOMARHINI

8th Applicant

MLANDELI

BANDEZI 9th Applicant

BAXOLILE

KULU

10th Applicant

ZOLEKA

KHOBA

11th Applicant

and

AFRICAN

NATIONAL CONGRESS 1st Respondent

OSCAR

LUBABALO MABUYANE 2nd Respondent

MLUNGISI

MVOKO

3rd Respondent

LULAMA

NGCUKAYITOBI 4th Respondent

HELEN SAULS-AUGUST 5th Respondent

BABALO

MADIKIZELA 6th Respondent

FANTA

GLORIA BUKIWE

7th Respondent

GADE

FUNDILE DAVID 8th Respondent

NGOZI

WILLIAM

9th Respondent

METH

NOMAKHOSAZANA

10th Respondent

TIKANA

WEZIWE

11th Respondent

MAGQASHELA

LOYISO 12th Respondent

NDABENI-ABRAHAMS

STELLA

13th Respondent

MAJODINA PEMMY 14th Respondent

KOTSIWE

NONCEBA

15th Respondent

MANTASHE

PRISCILLA

TOZAMA 16th Respondent

NONTSELE MNCEDISI 17th Respondent

DUNJWA MARY-ANN LINDELWA

18th Respondent

NDABE NIMZIWONKE 19th Respondent

DESI FIKILE 20th Respondent

NCITHA

ZUKISWA 21st Respondent

KULU

SIMTHEMBILE

22nd Respondent

MATIWANE

THABO 23rd Respondent

NQATHA

XOLILE 24th Respondent

QUPHE

ZANDISILE

25th Respondent

SOKANYILE

THOKOZILE 26th Respondent

GOMBA

SINDISWA

27th Respondent

MABENGU

XOLELA

28th Respondent

MBEDLA

MOMELEZI MTHETHELELI

29th Respondent

PETER

ZAMOXOLO JOSEPH 30th Respondent

NYALAMBISA

NOZIBELE 31st Respondent

MALAMLELA

XOLANI

32nd Respondent

RABEZINZI

ZINZISWA 33rd Respondent

CAMELIO-BENJAMIN

VIRGINIA 34th Respondent

MATANA

ZOLISWA PATIENCE

35th Respondent

KONI NTOMBIZANELE 36th Respondent

JUDGMENT

D VAN ZYL DJP:

[1] This is an urgent application to set aside the Provincial Conference (the Conference) of the 1st respondent, the African National Conference (the ANC), held at East London from 28 September to 1 October 2017 and the decisions taken thereat, more specifically the decision to elect the second to thirty sixth respondents as members of the Provincial Executive Committee (the PEC) of the ANC in the Eastern Cape Province (the Province).

[2] The applicants are branch members of the ANC in the Province. They act in their personal capacities. The relief claimed in the application is premised on irregularities which are said to have occurred at branch level in the lead up to the Conference, and during the Conference itself. The material complaints of the applicants can be summarised as follows:

(a) Delegates participated in the Conference in circumstances where:

(i) they were not elected at a properly constituted branch meeting;

(ii) the branch was found not to be in good standing;

(iii) the branch was disqualified from attending the conference;

(iv) they were elected by what had been described as a parallel branch structure

(v) an appeal had been lodged against the election of the delegates concerned and the appeal remained undecided; and

(vi) they were elected at a branch meeting where the attendance numbers were manipulated.

(b) The Conference continued and members of the PEC were elected notwithstanding the failure of the Conference to vote on, and adopt the credentials of the delegates.

(c) The meeting of the Conference was reconvened after violence had earlier prevented its continuation. The meeting proceeded in circumstances where, and notwithstanding the fact that:

(i) the steering committee of the conference had "collapsed";

(ii) the conference was earlier lawfully adjourned by the chairperson of the PEC;

(iii) there was no resolution to reconvene the conference;

(iv) the chairperson and deputy chairperson were not present at the reconvened meeting of the Conference, and no persons were lawfully elected in their stead.

(v) a large number of the delegates were not present at the reconvened meeting because they were chased away;

[3] The 1st to 6th respondents (the respondents) are opposing the application. The 2nd to 6t h respondents are members of the PEC. They have placed the correctness of the factual allegations in dispute on which the applicants rely in support of their claim that there were irregularities in the election of delegates and in the proceedings of the Conference. The factual disputes raised on the papers are to be dealt with on the established approach described in Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd.[1] The general rule is that where, in proceedings on notice of motion, disputes of facts have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant' s affidavits which have been admitted by the respondent or not placed in dispute, together with the facts alleged by the respondent, justify such an order. A qualification to this rule apply to instances where the denial by a respondent of a fact alleged by the applicant is not such as to raise a real, genuine or bona fide dispute of fact[2], or where the allegations or denials of the respondent are far-fetched, palpably implausible or so clearly untenable that the Court is justified in rejecting them merely on the papers.[3] If the Court is satisfied as to the inherent credibility of the applicant's factual averment, it may then proceed on the

basis of the correctness thereof, and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks.[4]

[4] Before determining whether the factual matrix justify the relief claimed, it is appropriate to deal with what are essentially objections to the justiciability of the issues raised by the application. The respondents raised two preliminary objections. The one is urgency, and the other is that the application was launched prematurely. The applicants brought the application on an urgent basis, that is, outside the rules which ordinarily apply to proceedings on application. In terms of Court rule 6(12), the Court has a discretion in urgent applications to dispense with the forms and service provided for in its Rules.[5] This usually involves the abridgment of the time limits prescribed by the Rules and a departure from established filing and sitting times of the Court.

[5] The respondents' objection is founded on the requirements in sub-rule 12(b) of the Rules that in every affidavit or petition filed in support of an urgent application, the applicant "shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course."[6] The contention is essentially that the factual allegations in the applicants' founding affidavits do not satisfy the two requirements

in sub-rule 13(b).[7]

[6] According to the applicants the urgency of the matter lies in the impact the irregular election of members of the PEC at the Conference and the unresolved problems at branch level will have on the National Conference of the ANC that will take place soon.[8] The main concerns which the applicants raise are in essence the following: that the disputes at branch level remain unresolved and may permeate the election by the branches of delegates to attend the National Conference; that the election of delegates from the branches in the Province to attend that conference will be overseen by a PEC that was elected at an improperly constituted meeting of the Conference; and that the very same PEC will attend the National Conference as delegates, thereby tainting the validity of that Conference.

[7] The respondents' second objection to the justiciability of the issues raised by the application is premised on the contention that the applicants should not immediately have petitioned the Court for relief without first having exhausted the domestic remedies which were available to them. Subsequent to the conclusion of the Conference the applicants, though their attorney, wrote to NEC demanding that it nullifies the Conference. When their demand was not met within the time limit which they had set, they proceeded to launch these proceedings. The respondents' contention is that the failure of the applicants to allow the decisional process, which they themselves set in motion, to run its course, constitutes a failure to make use of an alternative remedy at their disposal. According to the respondents the alternative remedy available to the applicants was to request the National Executive Council (NEC) of the ANC to decide on the validity of the Conference and to exercise its power to dissolve the improperly elected PEC. The respondents further contend that the failure by the applicants to make use of an available internal remedy is in conflict with an earlier decision taken by the National Conference of the ANC that party members are to exhaust internal processes before taking the ANC to court on organisational matters. In argument it was submitted to also run counter to an established practice in the Party to that effect.

[8] The applicants dealt with the averments made by the respondents in support of this objection by denying in their reply, with reference to the constitution of the ANC, that there were any domestic remedies available to them. It was further contended that the exercise of the power in the provision in the constitution on which the respondents place reliance in this regard, does not, and cannot afford them the redress they are seeking in these proceedings.

[9] The question of the justiciability of the issues raised by the application are best dealt with in the context of the nature of the applicants' claim and its legal basis. The essence of the claim is that the irregularities alleged to have occurred constitute an infringement or a breach of their rights. This claim is founded on two grounds: The first is that the irregularities constitute a violation of their constitutional right in section 19 of the Bill of Rights to participate in the activities of a political party.[9] Second, they contend that their rights arising from the contractual relationship created by the constitution of the ANC have been infringed.

[10] A political party is a voluntary association. Like any other voluntary association the constitution of the ANC constitutes a contract between its members, and their rights and duties, both as between themselves and in their relation to the association in all matters affecting its internal government and management, are determined by the terms of the contract.[10] The existence of the contractual nature of the relationship was confirmed by the Constitutional Court in Ramakatsa and Others v Magashule and Others (Ramakatsa) [11] "At common law a voluntary association like the ANC is taken to have been created by agreement as it is not a body established by structure. The ANC's constitution together with the audit guidelines and any other rules collectively constitute the terms of the agreement entered into by its members . Thus the relationship between the party and its members is contractual. It is

taken to be a unique contract."[12]

[11] The unique status of the contract is no doubt by reason of the fact that the constitution of a political party performs an important function in the exercise by a citizen of his entrenched right in section 19 of the Bill of Rights. It is the instrument through which a member of a political party exercises his right in subsection (1)(b) to "participate in the activities of a political party." The Court in Ramakatsa acknowledged this when it said that: "The constitutions of political parties are the instruments which facilitate and regulate participation by members in the activities of a political party, [13] and "that constitutions and rules of political parties must be consistent with the Constitution which is our supreme law."[14]

[12] Proceeding from this premise it was held that irregularities which constituted a violation of the ANC' s constitution and its guidelines, and therefore a breach of the terms of the agreement between it and its members, entitled the affected members to appropriate relief . I must add that in respect of certain of the grounds of complaint the Court directly applied section 19 of the Bill of Rights, and found that "Once an inconsistency with the Constitution is proved, this Court is obliged by section 172 to declare that the conduct in question is invalid, unless it finds that the

inconsistency is justifiable in terms of section 36 of the Constitution. The respondents have not advanced any

justification for the conduct. It follows that it must be declared invalid."[15] In argument the applicants placed reliance on this statement for the submission that the complaint of a single party member of an

irregularity at branch level in the lead up to the Conference, is sufficient to justify the granting of an order declaring

the Conference invalid. The conduct found in Ramakatsa to be directly inconsistent with section 19 was the fact that a number of branch members were prevented from participating in a branch meeting, and that branch delegates, who were found to have been properly elected at a legitimate branch meeting, were excluded from attending a provincial conference of the ANC.

[13] Except possibly for the more obvious inconsistency of the conduct m question with the right in section 19, it is not clear why the Court chose to differentiate between it and the other irregularities, and to deal with that conduct by way of a direct application of the Bill of Rights. The conduct is not only inconsistent with the democratic nature of the ANC as proclaimed in Clause 3.4 of its constitution,[16] but also constitutes a violation of right of a member in Clause 5.1.4 to "Take part in elections and be elected or appointed to a committee, structure, commission or delegation of the ANC." Like the other irregularities, it constituted a clear breach of the rights of the affected

party members in terms of the ANC constitution, which is in tum intended to give effect to the right of a citizen to participate in the activities of a political party as entrenched in section 19. The dispute raised by the conduct complained of was accordingly similarly capable of resolution on the basis of the contractual nature of the relationship between the members and the Party, and the established body of legal principles that find application thereto. It is unfortunate that the provisions of section 8(2) and (3) [17] of the Constitution were not considered, and that the constitutional principle of avoidance [18] appears to have been overlooked. The decision in Ramakatsa to directly apply section 19 to the dispute does however not impact on the issues raised in this matter. The finding was premised on the existence of the conduct in question,[19] which is not the position in the present matter. It is accordingly not necessary to deal with it in this judgment in any further detail.

[14] The importance of the acknowledgement in Ramakatsa o'f the legal nature of a political party as being that of an association, lies, in the context of the present matter, in the following:

Firstly, as a voluntary association is founded on the basis of mutual agreement, the relationship between a political party and its members is governed by the express or implied terms of the agreement. The constitution of the political party, together with any rules, regulations or guidelines issued would consequently

collectively constitute the terms of the agreement. "The ANC's constitution together with the audit guidelines and any other rules collectively

constitute the terms of the agreement entered into by its members." [20] The only qualification is that the terms of the agreement must be consistent with section 19 of the Bill of Rights.

[15] Secondly, a breach of the terms of the constitution of a political party, or a failure to adhere thereto now has a constitutional element to it. The reason lies in what was described in Ramakatsa as the unique nature of the constitutions of political parties as the instrument that gives effect to the entrenched right in section 19 of the Bill of Rights. The basis of the claim is as a result no longer confined to the common law right of a member of an association to protect his interest in the property of the association, or in the enforcement of what is a purely contractual right.[21] A breach of the rules of a political party may consequently also give rise to a claim founded on the

infringement of the underlying constitutional right in

section 19 of the Bill of Rights.

[16] Thirdly, in conformity with the principles that find application to associations, the Court will not readily interfere with the internal arrangements and management of a political party acting within the terms of its constitution. [22] "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, it is these parties which are best placed to determine how members would participate in internal activities."[23]

[17] Finally, by reason of the underlying contractual nature of an association, it is open to the parties to agree on an internal mechanism to deal with disputes. Judicial intervention may as a result be deferred or suspended until a member has pursued all extrajudicial remedies that may be available. Where the rules of an association provides for an internal remedy a member in the normal course of events first exhaust the remedy before seeking relief in a court of law.[24] This is however not an absolute rule.[25] As in the case of any other contract, the existence of an internal or domestic remedy, its content and effect is to be determined on a proper construction of the terms of the constitution of the association. [26] In appropriate circumstances the Court will entertain proceedings even though the aggrieved member has not exhausted a domestic remedy. The main considerations in that regard may be summarised as being whether the domestic remedy is capable of providing effective redress, and the fact that the alleged unlawfulness may be of such a nature that it has undermined the remedy itself.[27]

[18] The issue raised by the respondents' second objection must however not be confined to the existence at common law of a contractual duty to exhaust an internal remedy. As the unlawfulness of conduct that constitutes a breach of the rules of the constitution of a political party is now to be decided in the context of section 19 of the Constitution, it effectively raises a Constitutional issue. It follows that the objection raised must also be determined with reference to Constitutional principles or rules which place a limitation on the justiciabilty of a dispute, more so where a direct application of section 19 may be appropriate as Ramakatsa seems to suggest. Relevant for present purposes is the doctrine of ripeness. [28] Ripeness is a Constitutional doctrine that forms part of our law. It aims at ensuring that the Court decides cases "entailing a real, earnest, and vital controversy between the litigants and not entertain hypothetical cases, or cases that are only of academic interest."[29] In Ferrerra v Levin NO[30] the purpose of the doctrine was described as "highlighting that the business of a court is generally retrospective; it deals with situations or problems that have directly crystallised and not with prospective or hypothetic ones." It is a principle that stems from what is said to be the higher level principle of avoidance, that is, the resolution of a dispute raised without direct recourse to the Constitution.[31]

[19] The concept of ripeness includes, but is wider, more flexible and less formalistic than the common law duty to first exhaust a domestic

remedy that has been agreed to contractually. To ensure that a dispute is "a real dispute,"

or a "problem that has already crystallised", requires a court to be satisfied that the facts have sufficiently developed so as to present the issues for decision with clarity, precision and certainty, thereby avoiding the premature adjudication of abstract, hypothetical or contingent questions.[32] This will in my view require the Court to make a determination of the fitness of the issues for judicial decision, and any prejudice which the parties may suffer should the issues presented for decision not be adjudicated. [33] The application of the doctrine is fact based and may vary according to the dictates of the case. In short, the ripeness doctrine

allows a court to apply a pragmatic test to determine whether the unlawfulness of what is complained of is

sufficiently binding and clear in scope and implication to be

susceptible to judicial determination in the form in which the dispute raised is presented.

[20]

Is the matter urgent? The grounds for urgency advanced by the applicants are premised on the factual existence of the irregularities which are alleged to have occurred before and during the Conference. As stated, in terms of Clause 3.4 of the constitution of the ANC, it is a democratic organisation both in its composition and its functioning. If the applicants' allegations with regard to what took place at the conference are for purposes of this enquiry accepted as being correct, the election of members of the PEC at an improperly constituted meeting of the Conference would run counter to Clause 4.3. For undemocratically elected functionaries to remain in their positions, and to participate in the structures and in the activities of the party would consequently constitute a continuous violation of the rights of party members. Clause 10.1.1.4 gives the National Executive Committee of the ANC (NEC) the authority to allocate the "remainder of voting delegates" at the National Conference form among some of the party structures, one of which is the PEC. The prospect of members of the NEC who were undemocratically elected . taking part as delegates in the upcoming National Conference of the ANC, creates a degree of urgency which in my view justifies the hearing of the application otherwise than in the ordinary course as envisaged in Court Rule 6(12).

[21] The next question is whether the matter is ripe for hearing. According to the secretary - general of the ANC members of the party has an obligation to exhaust internal remedies before embarking on litigation. The obligation is said to arise from the provisions of the ANC's constitution and a decision taken at a National Conference of the Party. The secretary - general points to the power of the NEC to decide on the validity of any provincial conference, and to dissolve or suspend a PEC. The decision in question was taken at the National Conference of the ANC in 2007. It was resolved that Party members have a duty to make use of internal processes before taking the Party to court. In argument, counsel for the ANC further submitted that, on the facts placed before this Court, there also exists a practice within the party for members first to attempt to resolve their grievances within the structures of the party before they litigate. Reliance was placed in this regard on the statement of the secretary general in his answering affidavit that "members are entitled and encouraged to lodge grievances internally before they institute legal proceedings. The obligation carries with it a responsibility on members to act reasonably and without unnecessary haste."

[22] The applicants' response to what the secretary - general says is that the provisions of the ANC constitution do not expressly provide for any internal remedy; that there exists no internal appeal procedure in the constitution; and that the NEC does not have the power to do what the applicants' are asking this Court to do, that is, setting aside the Conference and the decisions taken thereat. The applicants say that prior to approaching this Court for relief they are claiming, they wrote two letters to the NEC with specific timeframes for a response, and that did not yield any results. Counsel for the applicants submitted in argument, with reliance on the contractual nature of the constitution of the ANC as confirmed in Ramakatsa, that unless it can be found that the ANC constitution provides for a remedy as contended by the secretary - general, there was no duty in the applicants to do anything more than what they have done before they launched the present application. He argued that on a proper construction of the ANC's constitution an internal remedy as contended by the respondents does not exist.

[23] As stated earlier, the terms of the contract that underlies the relationship between parties to an association are to be determined not only from the express terms of the agreement, but also from the implied terms as they may appear collectively from the constitution of the Party and other sources, such as directives or guidelines issued. In Ramakatsa the Court made reference to Clause 26 of the ANC constitution which empowers the NEC to "adopt rules and regulations for the

better carrying out of the activities of the ANC."[34] On a construction of the party's constitution the terms of the contract would also include decisions taken by the National Conference of the Party. That it is so is evident from the powers of the National Conference and the organisational structure of the ANC. In Dube and Others v Zakalala and Others (Dube) [35] the Court described the organisational structure of the ANC as a pyramid "narrowing as it ascends from the members level which constitutes the base and largest sub-stracture of the pyramid, followed in order by the branch level, the regional level, the provincial level (where the provincial conference will elect the PEC) and finally at the apex of the pyramid, the National Conference (NC) which elects the NEC, the highest decision making body of the ANC." [36] While the election of office bearers to the different levels is ascending, that is, by voting delegates of which at least 90% shall be from the branches (Clauses 10.1.1.1 and 17.2.2.1), the exercise of power and the management and organisation of the party is descending, that is from the top down. The highest decision making body is the National Conference. In terms of Clause 10 it is "the Supreme and controlling body of the ANC." Clause 12.2.1 empowers and instructs the NEC to "Carry out the decisions and instructions of the National Conference and the National General Council l".

[24] In support of the argument that the existence of an established and well known practice in the ANC must be included as forming part of the implied terms of its constitution, counsel for the ANC referred the Court in argument to the decision in Mcoyi and Others v Inkatha Freedom Party[37] where it was held, with reliance on the position in the English law, that a "customary practice which has developed in the application of a constitution or provision is a good guide as to what the drafters intend ed."[38] The decision in the English Law referred to is that of Lewis v Heffer[39] where the following was said: "Rules of association of this kind ultimately derive their legal effect from the acceptance, by the members, of the terms and conditions of the association when they join the group. Where there is an established and well-known and unquestioned practice in use in the association it is some evidence, and indeed it may be strong evidence, that this practice too is part of the terms and conditions which are accepted by persons joining the association. Consequently there are sound reasons for including such a practice as suspension by the NEC in the rules by a process of implication. If one adopted the contrary view, it must require an extraordinarily strong and clear case to justify the court in holding a well-established practice like this to be unconstitutional or ultra vires, more particularly where the organisation concerned is a

voluntary, unincorporated and

essentially informal body." The principle in our law that an association is based on contract has its origins in the English Law.[40] There is therefore in principle no reason for not accepting that an established or well-known practice in use in the ANC can form part of the terms of the contract that underlies the relationship between the party and its members as contended in argument.

[25] I am however not convinced that the portions in the affidavit of the secretary - general on which reliance was placed in support of the existence of a practice as contended, can be construed as evidence of "an established and well-known and unquestioned practice in use" as envisaged in Lewis v Helfer. It will require a clear statement of the existence of such a practice substantiated by sufficient factual allegations made in support

thereof. The question in my view is rather, accepting the existence of the decision of the National Conference in 2007, that has not been placed in dispute, what the nature of the internal remedy is that it is said must first to be exhausted before a party member may approach a court. It is evident that what is being relied upon in this regard is not an internal remedy as it is known traditionally, namely a procedural mechanism that must be employed to seek and obtain redress to a dispute.[41] It is rather the duty and the powers of the NEC in the constitution of the ANC to take steps to ensure that the provincial structures of the ANC function democratically, and to that end, the power to suspend or dissolve a PEC. The relevant provision is found in Clause 12.2.2 read with sub-clause 12.2.4.

It reads as follows:

"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 functions democratically and effectively. (The NEC may suspend or dissolve a PEC where necessary. A suspension of a PEC shall not exceed a period of 3 (three) months. Elections for a PEC, which has been dissolved, shall be called within 9 (nine) months from dissolution. The NEC may appoint an interim structure during the period of suspension or the dissolution of the PEC to fulfil the functions of the PEC.)"

[26] On a reading of Clause 12 it is evident that the NEC has extensive powers.

It must be accepted that these powers, as correctly pointed out in Dube, are not without limit, and are always "subject to the provisions of this Constitution." [42] Clause

12 does not explicitly give the NEC the authority to set aside a provincial conference. The secretary - general of the ANC says it does have that power, and the applicants certainly also thought so. As stated, after the conclusion of the Conference they wrote to the NEC through their attorneys of record wherein they demanded the "nullification of the conference." They subsequently in their replying affidavits, and in response to the objection raised in the ANC's answering papers to the of justiciability of the dispute, somewhat opportunistically sought to deny that the NEC has the authority to set a provincial conference aside.

[27] It is in my view not necessary to decide whether Clause 12.2.4 is wide enough to also include the power to set aside a provincial conference. At the centre of the applicants' case lies the decision taken at the conference to elect the incumbent members of the PEC. It is that decision which they seek to set aside, and which constitutes the basis for their submission that this matter must be heard as one of urgency. Except for the election of the NEC and the adoption of two reports, there does not appear to have been any other decision taken at the Conference. Counsel for the applicants was unable in argument to point to any such other decision. The main business at the Conference was clearly to elect new members of the PEC in time for the holding of the National Conference, as the term of office of those who were members of the PEC at the time expired at the Conference. [43]

[28] The duty imposed on the NEC by Clause 12.2.4 includes the duty to ensure that the structures of the ANC, with specific reference to its provincial structures, function consistently with the democratic nature of the ANC as layed down in Clause 3.4.[44] The functioning of an undemocratically elected PEC will be contrary to the principle that the ANC is in its composition and functioning a democratic organisation as proclaimed in Clause 3.4. The undemocratic functioning of a provincial structure of the party empowers the NEC, "Without prejudice to the generality of its power", to dissolve a PEC, and to cause the holding of new elections. The exercise of the power in Clause 12.2.4 clearly has the capacity to undo a decision to elect members of the PEC that took place at an improperly constituted meeting of the Provincial Conference.

[29] According to the secretary - general the concerns that were raised about the Provincial Conference are presently serving before the NEC, that the NEC has been attending to the complaints, and that it has not as yet made a decision with regard thereto. The matter has been dealt with at a number of meetings that were held in October between national officials of the Party, its National Working Committee, the applicants, branch leaders in the Province and the newly elected members of the PEC. The deponent further states that at the time of deposing to his affidavit, a meeting of the NEC was scheduled to take place from 11 to 13 November. [45] That meeting was held as scheduled, and resulted in the ANC applying at the hearing of this matter for leave to file a further affidavit to deal with that event.

[30] It may be convenient to deal with that application here. The affidavit deals with two matters. The first relates to two documents that were received by officials of the ANC from a Mr Afrika early in November shortly after the filing of the respondents' answering affidavits. The one document purports to be a notice signed by the applicants wherein they give notice of their decision to withdraw these proceedings, and "to allow the ANC internal process on the matter" to continue. The other document purports to be a formal notice of withdrawal of their application to court and signed by their attorneys of record.

[31] The second matter that is dealt with in the affidavit is what transpired at the anticipated meeting of the NEC in early November. It is said that at the meeting the NEC also considered another appeal that was received from two former members of the PEC. The matter was deliberated on and a decision was taken to entertain all the appeals, and to appoint, what is referred to as an appeal panel. The terms of reference of the panel is to "consider all relevant documents entertain oral representations, and make recommendation to the NEC as to the manner in which the complaints ought to be dealt with." The deponent to the further affidavit states that once the panel has made its recommendations, the NEC will decide what steps are to be taken, and that decision can only be taken once the NEC has satisfied itself of the existence, nature and extent of the irregularities, and its impact on the Provincial Conference.

[32] There is no reason not to receive the further affidavit. The matters dealt with therein arise from events that occurred after the filing of the answering affidavits and which are relevant to the issues raised. If the applicants decided to withdraw this application, there was no further reason to decide the dispute raised by it. Further, the meeting of the NEC was foreshadowed in the answering affidavits, and the decisions taken thereat are relevant to a decision on the objection raised to the justiciability of the dispute.

[33] Counsel for the respondents did not enjoin this Court to make a finding with regard to the withdrawal of the application. The documentation was not delivered in terms of the Court Rules and the applicants are clearly intent on the matter running its course. [46] It is accordingly not necessary to deal with the two documents and the factual disputes raised by it. Counsel instead confined his argument to the submission that this Court should decline the invitation

to decide the matter by reason of the internal process that was initiated by the applicants, and which has not been concluded.

[34] Factors relevant to a determination of the ripeness of the issues are the following: The power of the NEC to take measures to ensure the democratic functioning of the structures of the ANC, more particularly to dissolve the PEC and to cause fresh elections

to be held, gives it the capacity to effectively deal with the essence of the applicants' complaint. It is better placed to conduct

an investigation, to gather the facts and make a decision based on its knowledge of the workings of the Party' s internal processes and procedures. The latter aspect is of particular importance to the existence of what the applicants contend were irregularities at branch level and at the Conference. Not all the internal processes of the ANC are explicitly dealt with in its constitution, but are dictated by directives issued and decisions taken by the organisational structures of the Party.[47] The guidelines of the Party that regulate its conferences provide for a verification process and dispute resolution mechanisms to deal with complaints arising from that process before the commencement of a conference. The irregularities

at branch level on which the applicants rely mostly concern the implementation of unchallenged decisions made by functionaries

appointed to deal with complaints. Further, a decision on the validity of the election of the PEC is subject to the resolution of disputes, both in relation to what occurred at branch level and at the Conference, that are of a factual nature involving several role players. Motion proceedings are not the ideal vehicle to resolve such disputes "because they are not designed to determine probabilities."[48] The issues for determination are more likely to be presented with clarity, precision and certainty following an investigation and

decision by the NEC.

[35] On the accepted facts the applicants' complaints and their demand that the Conference be declared invalid have not remained unattended. The matter has been dealt with in several meetings by different role players within the ANC during October. It was further a matter on the agenda of the NEC at its meeting in November. That culminated in a formal decision by the NEC to look into the complaints and to appoint a panel to conduct an investigation and make recommendations to it. To that end the applicants have since been invited to appear before the panel and to make submissions with regard to mandate of the panel to determine whether the Provincial Conference was convened in accordance with the ANC constitution and

the guidelines issued.

[36] Neither in their reply, nor in their response to the further affidavit, do the applicants deny the steps the respondents say have been taken to date to resolve the matter. They instead contend that they took, or understood the failure of the NEC to respond to their demand for the nullification of the conference, as a decision by it to take a final position on the matter. Otherwise than in Ramakatsa and Dube, that conclusion is not justified on the facts presented in this matter. [49] The applicants received a response to their first letter wherein they were requested to inter alia provide further information regarding the irregularities it was said had occurred. The applicants formulated a response and gave the NEC two days in which to respond accompanied by the threat of legal action. There is nothing in the response to the first letter to indicate an unwillingness, or a refusal on the part of the NEC to deal with the applicants' complaints, or that it has taken a decision on it. Further, the only party structure that could effectively deal with the complaints is the NEC. In terms of Clause 17.1 of the ANC constitution it is "the highest organ of the ANC between National Conference," and there is no indication that the NEC had met, or was expected to meet at any time between the writing of the letters and the launching of these proceedings.

[37] The applicants further contend that the secretary - general of the ANC is clearly of the view that the Conference was lawfully held, and that he was reported in the press to publicly have expressed a similar view. The answer to this is that in terms of Clause 12.2.4 the decision to dissolve the PEC lies with the NEC as the highest organ of the ANC outside of its National Conference. The secretary - general is merely a member of the NEC and of the Working Committee elected by it. There is nothing on the papers to support the

underlying suggestion that he has the authority to take decisions on behalf of the NEC. It is further evident from what the secretary - general says in his affidavits in opposition to the application , that his views with regard to the complaints of the applicants are based on reports which he received from individual NEC members who were appointed to oversee the Provincial

Conference, and who were present thereat.

[38] The cumulative consequence of all the factors alluded to is that the matter is not ripe for hearing. The next question is whether despite this finding this Court should nevertheless entertain the dispute. It is not the applicants' case that the NEC is for any reason disqualified from dealing with the complaints. The only relevant consideration in this regard is that the applicants should not be required to await the final outcome of the ANC's decisional process because the result is a foregone conclusion. Put differently, the irregularities complained of did occur, and are of such a nature that it makes it unnecessary and prejudicial to the applicants to await a decision of the NEC. This requires a determination of the existence of the irregularities complained of.

[39] As stated, the irregularities relied upon can be divided into two categories.

Those irregularities that are said to have occurred at branch level in the lead up to the Conference, and those that occurred in the meeting of the Conference. The respondents dispute that the existence of any of the irregularities relied on, and to that end dealt extensively with each of the complaints in their answering affidavits. The disputes raised are of a factual nature and are to be determined on the basis of an application of the principles in the Plascon-Evans case.[50]

[40] The irregularities that are said to have occurred at branch level must be considered in the context of the Party's organisational measures in relation to its conferences. Conference guidelines are issued by the NEC. [51] It provides for organisational requirements that are to be adhered to in preparation for a conference. It deals with the requirements relating to matters such as branch membership, the registration of a branch, the convening of meetings and the conduct of conference audits. What is referred to as a pre-audit, is performed by the REC or the REC of a province in preparation of a provincial conference audit. That audit is the task of the office of the secretary - general. The purpose of the audit is to verify membership and branch registration. On completion of an audit for the region a preliminary audit report is submitted to the provincial secretary to enable branches to raise queries. If a branch remains dissatisfied it may appeal, through its branch executive committee, to the national audit team, subject to a decision of the National Working Committee who is the final arbiter.

[41] In terms of paragraph 5 of the guidelines, members of the regional and provincial structures or the national committees may be deployed to the branch general meetings. One of the functions of a deployee is to ensure that the branch meetings elect delegates to a provincial conference. To that end the election of delegates to a conference is to be presided over by the deployee. After a branch general meeting was held, the deployee must submit a report to the regional office whose task it is to "check in detail whether all requirements were met during the BGM and thereafter to submit a report to the REC or Conference Preparatory Committee." It is in turn the task of the latter structure to satisfy itself that the branch meetings were "indeed an ANC Constitutional meeting." The report is then submitted to the national audit team for verification. Only then will the secretary - general issue a signed audit report, confirming that the branches have met the audit requirements for a conference.

[42] Paragraph 8 of the guidelines deal with preparations for a provincial conference. The province should have convened 80% of its regional conferences, and the audit of the branches by the national audit team should be concluded. NEC and PEC members are deployed to the conference whose task it is to inter alia ensure that the branches have elected their delegates to the conference, and to distribute nomination forms for the election of the PEC. Further, in preparation of the Conference in the Eastern Cape, the provincial secretary issued guidelines along the lines of the NEC guidelines. It included a provision for the resolution of complaints or grievances. An appeal tribunal was to be created that was to sit every two weeks from the start of the convening of branch general meetings. Appeals were to be submitted to the provincial - secretary within 48 hours of the branch meeting, and the appellant must have been present at that meeting, unless they were deliberately prevented from attending.

[43] What is evident from the aforegoing is that the verification of the individual branches in a province, the election of the delegates and the delegates themselves are scrutinised by a number of functionaries before it is signed off by the secretary - general of the Party. Further, dispute resolution mechanisms are put in place to deal with any complaints before the commencement of a conference. According to the secretary - general only those branches in the Province that were audited and found to be in good standing, were allowed to send delegates to the Conference. Those persons who were excluded, were excluded by reason of their non­compliance with the agreed guidelines that regulate requirement for participation in a conference. The provincial secretary, Mr Ngcukayitobi in tum states that before the Conference all outstanding appeals were dealt with, and their outcomes were presented to, and were accepted by the PEC.

[44] In dealing with the branch complaints, counsel for the applicants confined himself in argument to the complaints raised in respect of Wards 5 and 28. The complaints are premised on the allegation that ward members attended the Conference without having been elected as delegates at a properly constituted branch meeting. This, it was submitted, is in breach of Clause 17.2.2.1 that delegates shall be from the branches "elected at properly constituted branch general meetings." In Ward 5 the essence of the complaint was that ward members were seen attending the Conference, notwithstanding the fact that the ward did not hold a branch annual general meeting to elect a branch executive, or a branch general meeting to elect delegates as earlier ordered by an appeals tribunal. Further, the ward did not form part of the list of the wards that qualified to attend the Conference as contained in the final report of the secretary - general of the Party. At the Conference the first applicant however "came across" a final report of the secretary - general of the Party wherein Ward 5 was listed as having qualified to attend the Conference.

[45] In his response the secretary of Ward 5 states that subsequent to the appeals ruling and the issuing of the list of branches that qualified to attend the Conference, a branch member , Noncedo Guma lodged a further appeal against the exclusion of Ward 5 from the Conference. This is confirmed by the applicants in their founding affidavit where it is stated that Guma lodged, what is referred to as a grievance, complaining about the exclusion of Ward 5 from participating in the Conference. According to the respondents the outcome of that appeal was that the earlier decision of the appeals tribunal was set aside, with the result that the delegates elected at an earlier branch general meeting in May were able to attend the Conference. That was confirmed

by an additional report of the ANC secretariat dated 27 September wherein Ward 5 was cleared to participate in the Conference.

[46] In respect of Ward 28 the complaint is that a branch annual general meeting and branch general meeting was unilaterally convened on 30 July by a deployee of the Regional Executive Committee (REC) who took possession of the branch membership forms. At the meeting a branch executive committee and delegates to the Conference were elected. An appeal was lodged by former members of the branch executive. The outcome of the appeal was that there must be a re-run of the meeting. A meeting was held on 10 September and was again overseen by the deployee of the REC. Once again dissatisfied members of the ousted branch executive lodged an appeal. The branch subsequently appeared on the list of branches that qualify to send delegates to the Conference. A disgruntled member, upon learning of this, submitted an appeal to the steering committee of the Conference. There was no response to the appeal.

[47] The respondents' response comes from the secretary of Ward 28. According to him the meeting of 30 July was preceded by a meeting held on 25 July, at which meeting an issue arose with regard to membership forms of branch members. It was agreed to postpone the meeting to 30 July. Both meetings were attended by a deployee of the REC who took possession of the membership forms. There is nothing untoward in this as the applicants seem to want to suggest. The conference guidelines provide that for purposes of the membership audit, a branch must provide its membership file that contains all membership forms. Paragraph 5 in turn instructs the deployee to chair the meeting for the election of delegates. At the meeting members of the branch executive and delegates to the upcoming Conference were elected. Subsequent to the meeting an appeal was lodged. It was upheld. A re-run of the meeting was ordered. That took place on 10 September. Again the outcome of the meeting was appealed. That appeal was upheld on 21 September, and on the following day the meeting was once again convened, as directed by the appeals tribunal. After that meeting the branch was cleared and accredited to attend the Conference.

[48] In support of his argument that the delegates who were sent to the Conference were not elected at "properly constituted branch

general meetings" as prescribed by Clause 17.2.2.1 of the ANC constitution, counsel for the applicants pointed to certain

discrepancies in the trail of documentation relevant to the two branches and the election of their delegates to the Conference. The question is whether the respondents' version can be said to be palpably implausible, far­ fetched or so clearly untenable that it can be rejected simply on the papers and without evidence. [52] The aspects on which the applicants place reliance in argument are in my view not of such a nature that it raises doubt about the veracity of the respondents' version to the extent that it may justify such a finding. As stated in National Scrap Metal (Cape Town) v Murrary and Roberts Ltd and Others,[ 53] "As was recently remarked in this court, the test in that is 'a stringent one not easily satisfied'. In considering whether it has been satisfied in this case, it is necessary to bear in mind that, all too often, after evidence has been led and tested by cross­ examination, things turn out differently from the way they might have appeared at first blush."[54] Otherwise than in Ramakatsa, where the Court found that there was no serious attempt to deal with the applicants' factual allegations, the respondents in this matter formulated a detailed and comprehensive response to each one of the applicants' complaints, not only in respect of Ward 5 or 28, but all the other Wards that are mentioned in the applicants' founding affidavits and the irregularities that are said to have occurred in those wards. Consistent with the conference guidelines, the response speaks of an extensive audit and appeals process that was followed in the lead up to the Conference.

[49] Turning then to the Conference, in argument counsel for the applicants confined himself to two submissions. His first argument was that on the facts placed before this Court it must be concluded that the Conference was not properly convened because the report relating to the credentials of the delegates were not adopted by the meeting of the Conference. Secondly, that the meeting was adjourned and thereafter never properly reconvened. That being the position, he submitted that any decision taken thereafter was invalid.

[50] Only the 11th applicant attended the Conference. According to her the registration process of delegates to the Conference was beset with problems. Various disputes were raised that remained unresolved by the start of the Conference on 29 September. The next day further attempts were made to resolve the disputes, apparently unsuccessfully. When the meeting of the Conference reconvened the issue of the credentials of delegates to the Conference was discussed. The delegates refused to adopt the credentials report presented by the deputy - secretary of the PEC. A proposal by a delegate that the meeting adjourn for the steering committee of the Conference to meet and to return to report to the meeting, was met by a counter proposal by a member of the NEC deployed to the Conference, that the issue of the credentials should be voted on. The counter proposal was the trigger for chaos and disorder. Violence broke out and the chairperson of the NEC adjourned the Conference. Delegates left the Conference venue. When they returned a short while later violence again broke out. The police intervened. Delegates were injured and had to receive medical treatment. Some of the delegations were chased away from the venue. An NEC member made an announcement that the Conference was to continue, and proceeded to appointed someone to chair the meeting. The Conference continued and members of the NEC were elected.

[51] The events at the Conference is extensively dealt with in the respondents' affidavits, in particular that of a member of the NEC, Mr Kodwa and the provincial secretary, Ngcukayitobi who attended the Conference. Kodwa and a few other NEC members were deployed to the Conference to deal with appeals and to facilitate solutions to any challenges that may arise during the Conference. According to him the only problem that arose with regard to the delegates was that it was reported to the steering committee by the credentials committee that the identity numbers of delegates from some of the regions were incorrectly captured. This was resolved by adopting a system of cross referencing. The credentials of delegates were dealt with by a committee established for that purpose. It presented its report to the steering committee of the Conference. That Committee adopted the report. Thereafter the regional secretaries also confirmed the correctness of the report.

[52] When the Conference opened on 29 September questions around the credentials of delegates were once again raised. This was dealt with by the regional secretaries confirming the identities of delegates against registration documentation and by increasing security so as to only allow accredited delegates to enter the venue. The Conference was opened and the provincial chairpersonpr esented his report. The following day delegates were again verified with the assistance of the provincial and regional secretaries. The credentials committee presented its report and it was confirmed by the regional secretaries. The report was adopted by the meeting of the Conference. Some delegates refused to accept the adoption of the credentials. A group of delegates then started to disrupt the Conference. Delegates were pushed towards the back of the venue. Most of the delegates however remained seated and did not participate in the disruption of the meeting. The provincial chairperson attempted in vain to address those who were disrupting

the meeting. The disruptive group of delegates left the Conference venue. Kodwa disputes the assertion that the meeting of the

Conference was adjourned. After matters were calmed down and order was restored, a head count of delegates was done. Sufficient numbers remained to form a quorum of the meeting. The meeting accordingly proceeded with its business. The only outstanding item was the election of members of the PEC.

[53] I agree with counsel for the respondents that there is no compelling reason to question the veracity of the evidence of Kodwa or Ngcukayitobi that the credentials report was adopted, and to reject what they say without more on the papers. They were both at Conference. Kodwa was there to oversee the functioning of the Conference and would have personal knowledge of what transpired in the different meetings of the committees that dealt with the issue of the credentials of the delegates. An assessment of his evidence must be made in the context of the fact that the 11th applicant attended the conference as an ordinary delegate who would, unless stated otherwise, not have personal knowledge of what transpired in the meetings of the committees outside of the meeting of the Conference itself. The 11th applicant does not disclose the source of her information that the issue relating to the credentials remained unresolved until the commencement of the Conference.

[54] A further difficulty facing the applicants is that they did not pertinently raise as an issue for determination the contention that

the failure to adopt the credentials report meant that the meeting of the Conference was not properly constituted. "In motion proceedings, the affidavits constitute both the pleadings and the evidence ... and the issues and averments in support of the parties' cases should appear clearly therefrom."[55] There is nothing in the ANC constitution or in any of the guidelines which the parties made reference to in their affidavits, that unequivocally point to the conclusion contended for. The applicants' complaints in their founding affidavits were rather directed at what transpired after the adjournment of the meeting by the provincial chairperson.

[55] An issue that was clearly raised by the applicants on the papers is the contention that the meeting of the Conference ended when it was adjourned after it was disrupted by the violent behaviour of the delegates, and that any decision taken thereafter was invalid as a result. According to the applicants the meeting was adjourned by the provincial chairperson "who took to the podium." The difficulty facing the applicants is that the provincial chairperson was not the chairperson of the meeting. On the applicants'

version of the events the meeting was chaired by Mr Somyo, the deputy chairperson of the NEC. The law relating to meetings is contained in the statute, constitution or the rules and regulations of the particular entity or organisation, and in the common law.[56] The conduct of the meeting and the preservation of order is the responsibility of the chairperson. Unless the constitution stipulates anything to the contrary, the power to adjourn a meeting rests with the meeting. [57] However, once order no longer prevails, an adjournment lies within the chairperson's power. [58] This means that the provincial chairperson did not have the authority to adjourn the meeting of the Conference unless otherwise provided in the ANC's constitution or any other binding source. The applicants were unable to point to a source that provides differently.

[56] The respondents dispute that the Conference was adjourned. According to them it continued after those who attempted to disrupt it left the venue, and that a sufficient number of delegates remained to constitute a quorum. In the absence of

a contrary provision in the ANC's constitution, the general rule that applies to meetings is that the majority of the delegates constitute a quorum.[59] Further, and unless the constitution provides otherwise, the rule is that the chairperson of a meeting is elected by the meeting itself.[60] This conforms with Clause 17.2.2.5 of the ANC constitution that provides that it is the Conference that "determines its own procedures in accordance with democratic procedures and principles." It was accordingly open to the Conference to elect another person to act as chairperson in the absence of Somyo, and to continue with the business of the Conference. Once it is accepted that the meeting of the Conference was not adjourned, the basis of the applicants' further submission that the decision to elect members of the PEC was invalid, falls away. I am not satisfied that the respondents' version that the meeting did not adjourn and continued, can safely be rejected on the papers. The applicants elected for their case to be decided on the affidavits alone, and therefore bound themselves to the approach in Plascon - Evans. [61]

[57] For the aforegoing reasons the objection raised to the justiciability of the matter is upheld, and the application falls to be dismissed. There remains the question of costs. It was not contended that the costs should not follow the result. The applicants however submitted that the respondents should bear the costs of the application for the filing of their additional affidavit, and the reserved costs of the adjourned hearing of the matter on 21 November. As the respondents were seeking an indulgence, there exists no reason for them not to pay the costs of the said application.

[58] With regard to the reserved costs, on the date of the hearing of the matter counsel for the applicants indicated that he was unaware of the existence of the additional affidavit. The affidavit was delivered to the applicants' correspondent attorney whom appear to have failed to forward it to his instructing attorney in Mthatha. The affidavit was however not accompanied by a substantive application for its admission. That application was only filed on 20 November, a day before the main application was to be heard. I agree with counsel for the applicants that even if accepted that the affidavit was delivered in terms of the Court Rules, in the absence of it having been accompanied by an application for its admission, the applicants had no duty to respond thereto. It was for all intents and purposes pro non scripto .[62] The applicants were in the circumstances, considering the relevance of the matters raised in the additional affidavit, entitled to deal therewith. That necessitated a postponement of the matter.

[59] There is one final issue to address. Following the hearing of the matter the applicants purported to file lengthy supplementary heads of argument. This was done without leave of the court and without reference to the respondents. Such conduct is to be deprecated. The respondents rightly objected thereto. No regard was had to the content of the supplementary heads of argument.

[60] In the result, and for the aforegoing reasons, it is ordered:

(a) The application is dismissed with costs, such costs to include the costs consequent upon the employment of two counsel.

(b) The 1st to 6th respondents are ordered to pay the costs occasioned by the filing of the supplementary affidavit dated 16 November 2017, including the costs reserved on 21 November 2017, which costs are to include the costs consequent upon the employment of two counsel.

______

D

VAN ZYL

DEPUTY

JUDGE PRESIDENT

I agree

N

G BESHE

JUDGE

OF THE HIGH COURT

G

G GOOSEN

Counsel for the Applicants; Adv PHS Zilwa (SC) and Adv AM Da Silva

Instructed by:

Mvuzo Notyesi Incorporated

14 Durham Street

MTHATHA

c/o Mbabane & Sokutu Inc.

95A Chamberlain Road

VINCENT

EAST LONDON

Counsel for the Respondents: Adv. T Ngcukaitobi and Mr Bodlani

Instructed by:

Dayimani Sakhela Inc

72 Madeira Street

c/o M Chinamasa Attorneys

57a Jarvis Road

BEREA

Date Heard:

04 December 2017

Judgment Delivered:

12 December 2017

[1] [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E - 635C.

[2] Room Hire Co. (Pty) Ltd v Jeppe Sheet Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163 - 1165; Da Mata v Otto NO 1972 (3) SA 858 (A) at 882 D - H.

[3] Associated South African Bukeries (Pty) Ltd v Oryx & Vereinigte Backereien (Pty ) Ltd & Andere 1982 (3) SA 893 (A) at 973G - 924D.

[4] Ripoll-Dausa v Middleton NO and Others [2005] ZAWCHC 6; 2005 (3) SA 141 (C) at 15 IH - 152A

[5] The Uniform Rules of Court.

[6] See Erasmus Superior Court Practice at B1-568 and the cases referred to in note 3.

[7] Cekeshe and Others v Premier, Eastern Cape and Others 1998 (4) SA 935 (Tk.D).

[8] It is scheduled to commence on 16 December 2017.

[9] Section 19 provides: "Every citizen is free to make political choices, which includes the right - (a) To form a political party; (b) To participate in the activities of, or recruit members for, a political party; and (c) To campaign for a political party or cause."

[9] Section 19 provides:

"Every citizen is free to make political choices, which includes the right -

(a) To form a political party;

(b) To participate in the activities of, or recruit members for, a political party; and

(c) To campaign for a political party or cause."

[10] Matlhalwa v Mahama and Others [2009] All SA 238 (SCA) at para [8].

[11] (109 /12) [2012] ZACC 31.

[12] At para [79].

[13] Para [73].

[14] Para [72].

[15] Para [119].

[16] It provides that "The ANC shall, in its composition and functioning, be democratic . . ."

[17] The two subsections read as follows: "8(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. 8(3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court - (a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and (b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1)."

[17] The two subsections read as follows:

"8(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.

8(3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of

subsection (2), a court -

(a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and

(b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1)."

[18] "I would lay down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed." Kentridge AJ in S v Mhlungu [1995] ZACC 4; 1995 (3) SA 867 (CC) at para (59]. See also Zantsi v Council a/ State, Ciskei [1995] ZACC 9; 1995 (4) SA 615 (CC) at para [8] and Currie and de Waal The Bill of Rights Handbook 6th ed at pages 45 and 68 to 71.

[19] See the findings in paras (107] and [110] of Ramakatsa .

[20] Ramakatsa at para [79].

[21] Joubert The Law of South Africa 2nd ed vol lat page 472 to 473.

[22] Wilken v Brebner l 935AD 175 at 180 - 181 and Balomenos v Jockey Club of South Africa 1959 940 SA 381 (WLD) at 386B. See further Joubert op cit at page 474.

[23] Ramakatsa at para [73].

[24] Joubert op cit at page 478.

[25] Baxter Administrative Law (1984) at page 720. See also Koyabe v Minister of Home Affairs 2010 (4) SA 327 (CC) at para [34)

[26] Nichol and Another v Registrar of Pension Funds and Others 2008 (1) SA 383 (SCA) at para [15].

[27] Baxter op cit at page 771.

[28] It is a term borrowed from American Constitutional Law. See Baxter op cit at page 719 note 330.

[29] Currie and de Waal op cit at page 72. See also Hoexter Administrative Law in South Africa at page 518 to 520 and Woolman Roax, Klaaren, Stein and Chaskalson Constitutional Law of South Africa vol l zn d ed at page 7-16 to 7-18.

[30] 1996 (1) SA 984 (CC) at para [199].

[31] National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA l (CC) at para [21].

[32] Ripeness entails consideration of the timing of a constitutional challenge. Currie and de Waal op cit at page 85.

[33] Baxter op cit at page 719 - 720 and Currie and de Wall op cit at page 85.

[34] Para [76].

[35] A decision of Kwazulu-Natal Division delivered on 12 September 2017 (Case No. 7904/2016P).

[36] Para [31] .

[37] 2011·(4) SA 298 KZP.

[38] Para [43].

[39] [1978] 3 All ER 354 (CA).

[40] Joubert op cit at page 462 - 463.

[41] See Dube at para [139].

[42] At para [32].

[43] In terms of rule 19.1, between provincial conferences the authority to lead the ANC in the province is the PEC. Rule 17.2.1 in tum provides that a provincial conference must be held every four years.

[44] See note 16 above.

[45] The affidavit was deposed to on 7 November 2017.

[46] "Deliver" is defined in Rule 1 to mean "serve copies on all parties and file the original with the registrar."

[47] See paras [40] to [42] below.

[48] Harms DP in National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) at para [26).

[49] In Ramakatsa the appellants were in the facts found to have been entitled to accept that a decision was taken to approve the conference. The NEC "endorsed" the PEC and proceedings of the Provincial Conference (at paras (26] and 27]. The Court in Dube found that the decision at the NEC to proceed with the induction of the newly elected PEC was a clear indication that it did not intend to attend to the applicants' complaints. (At para [40].)

[50] See para [3] above.

[51] Clause 26 of the ANC Constitution empowers the NEC to "adopt rules and regulations for the better carrying out of the activities of the ANC." See Ramakatsa at para [76].

[52] Fakie NO v CCII Systems (Pty) Ltd2006 (4) SA 326 (SCA) at para [55]/

[53] 2012 (5) SA 300 (SCA).

[54] At para [22].

[55] Minister of Land Affairs and Agriculture and Others v D&F Wevell Trust and Others 2008 (2) SA 184 (SCA) at para (43). Also Transnet Ltdv Rubenstein 2006 (1) SA 591 (SCA) at para [28].

[56] Joubert op cit vol 17 at page 232.

[57] Joubert op cit at page 241 to 242.

[58] Ibit.

[59] Joubert op cit at page 239.

[60] Joubert op cit at page 240.

[61] Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd 2017 (2) SA I (SCA) at para [36] and [39].

[62] Standard Bank of SA Ltd v Sewpersadh 2005 (4) SA 148 (C) at 153H - l 54J.