It doesn’t look good for Zikalala’s PEC
With less than a month to the ANC Mangaung conference in December 2012, the Constitutional Court delivered a judgment that had a bearing on the composition of delegates. The dispute was over the legitimacy of the party’s provincial executive committee (PEC) in the Free State, which had been elected in June 2012, with Ace Magashule at the helm.
On presentation of the report on the proceedings of that conference, the ANC national executive committee (NEC) endorsed it, but not all of the provincial branch leaders did. Six of them, from four of the ANC’s five regions in the province, and led by Mpho Ramakatsa, complained of irregularities.
His group essentially charged that the June 2012 provincial conference was illegitimate. Severe flaws marked both the preparations and the conference itself. Some regions were given more delegates than allowed by the verified voters roll; branches were not given a preliminary membership audit report to scrutinise in order to submit queries, if they had any; some branches were disqualified from attending when in fact they were in good standing; and bogus delegates were sent to represent branches that were disqualified.
Responding to the allegations, Magashule’s PEC, together with the party’s secretary-general, Gwede Mantashe, either denied the allegations or simply claimed not to recall. They were not convincing.
Their “bare denials”, as Justices Dikgang Moseneke and Chris Jafta wrote, “do not rise to the level of disputes of fact”. Consequently, the Concourt nullified the outcome of the provincial conference, stripping the provincial party of its leadership. In its stead, a provincial task team was appointed to oversee nomination of delegates to the party’s national conference in December 2012. Magashule was not at the helm to steer the nomination process towards President Jacob Zuma in his presidential race against Kgalema Motlanthe.
Ultimately, however, the impact of Free State proved inconsequential in the outcome of the presidential race. Zuma won overwhelmingly. He had the support of most provinces, especially the biggest in terms of party membership, KwaZulu-Natal.
Just as it happened almost five years ago, a court is considering a dispute related to the legitimacy of the outcome of the KwaZulu-Natal provincial conference held in November 2015.
Brought by Lawrence Dube and four of his comrades in the ANC, the charges in this case are similar to those brought by Ramakatsa’s group against Magashule and Mantashe in the ANC centenary year. And the verdict will be delivered possibly next month, just three months ahead of the elective national conference.
Unlike the Free State five years ago, a decision annulling Sihle Zikalala’s PEC would have a decisive influence on the outcome of the presidential race in December.
KwaZulu-Natal membership remains the biggest in the party and the provincial PEC is rooting for Nkosazana Dlamini Zuma.
So, what are the prospects of the KwaZulu-Natal High Court reaching the same verdict as the Concourt five years ago? It is highly likely.
Of course one is not relying on any superior knowledge of the law, but purely on the sameness of allegations, a non-factual defence and the propensity of verdicts to follow precedence.
Supported by 1233 paid-up members of the ANC, Dube’s group alleges that, as in the case of the Free State, both the preparations towards the 2015 KwaZulu-Natal provincial conference were fraught with violations of the ANC constitution and guidelines for organising conferences. Improprieties included branches not receiving a preliminary or final audit of branches to check if they were properly vetted.
They were simply told that they did not qualify to attend the provincial conference without being given the opportunity to appeal the audit findings.
Others were told that they qualified to attend the conference, only to be turned away at the conference. Some of the delegates that were dubiously turned away were replaced “by bogus duplicate delegates from their branches who had not been lawfully elected as such but who were recognised by the credentials committee on the day and allowed, quite unlawfully, to represent those branches at the conference, and, obviously, to vote on their behalf” There were 17 such bogus delegates.
Perhaps even more audacious was the discrepancy between the Adopted Credentials Report and the Verified Voters Roll. One set of branches numbering 24, for instance, was “deprived of representation by a total of 36 delegates to which they were entitled ” By contrast another set of 31 branches was allocated 44 more delegates than it deserved.
What makes the case even more precarious for the incumbent in KwaZulu-Natal is that the very sitting of the conference was improper.
Because it was called earlier than was prescribed by the constitution, its sitting should have been endorsed by one-third of the branches. Dube contends that never happened nor did the NEC, as is required, give its formal approval for the special conference.
In its defence, Zikalala’s PEC offers an alternative interpretation of the ANC constitution and a different version of what happened and complains that a negative verdict would inconvenience the ANC. On the constitution, they contend that the constitution is not emphatic that a conference should be held every fourth year, but that there shouldn’t be more than one in four years.
If one believes this argument, it means the ANC doesn’t attach any import to the duration of elected leaders’ terms of office. This implies they could be removed any time as long as the party doesn’t hold two conferences within a space of four years. Surely this logic can’t hold.
Coupled with the fanciful interpretation is a plea for sympathy. Zikalala pleads with the court not to annul his election as that would cost him his job. Together with members of his PEC, Zikalala explained to the full bench of judges that he was appointed to the provincial cabinet on account of his election.
Zikalala wants the judges to help him keep his job. Apparently judges are nice people but don’t really do sympathy. Their decisions are guided by facts. For Zikalala’s PEC to win the case, therefore, their version of events must be factual.
This requires a paper trail.
This is where Zikalala is likely to flounder. Dube’s advocate, Tembeka Ngcukaitobi, would not have presented a case that submitted false claims. In short, it doesn’t look good for Zikalala’s PEC. Perhaps he should have accompanied the plea for sympathy with an apology. That would still not have worked.
What then happens in the likely event that Zikalala’s PEC is annulled? A provincial task team will be installed to prepare for an provincial elective conference. But this won’t happen between September and the ANC’s national conference in December. It’s not enough time. That means the provincial task team will oversee the election of delegates to the national conference.
This process is likely to be monitored closely by Mantashe’s office to avoid irregularities that could throw the legitimacy of the national conference into question.
A fair process is not good for Dlamini Zuma’s prospects of winning in December. This contest is far from over!
By Mcebisi Ndletyana
* Ndletyana is associate professor of politics at the University of Johannesburg.
The Sunday Independent