Constitutional Watch

ANC’s own constitution could trip it up


In four days’ time the ANC’s conference starts to elect leaders and decide future policies, but its constitution might on legalities trip-up the process.

Court challenges to some aspects of the election process thus far, raised questions whether it could go ahead at all.

What might be the legal permutations in terms of the ANC Constitution?

The Free State High Court already declared decisions by 29 ANC branches in the province unlawful and invalid and held that a provincial conference, to elect a Provincial Executive Committee (PEC), could not take place until the 29 branches held new, awful meetings.

The High Court in Pietermaritzburg also declared the election of the KwaZulu-Natal PEC unlawful and invalid. The KZN leadership went to court again week to ask for leave to appeal. This would normally suspend the effect of the judgment until the appeal is finalised. But during the hearing, the applicants applied for an execution order to force the current PEC to vacate office, regardless of whether the appeal is heard or not.

Why should a dispute amongst members of a political party land up in court at all, while political parties, at least for certain purposes, parties are private entities who can arrange their affairs as they wish.

However, section 8(2) of the South African Constitution makes clear that the rights in the Bill of Rights do not only bind the state. It also bind private individuals and “juristic persons” (legal entities like political parties).  

This means that political parties are bound by section 19(1)(b) of the Bill of Rights which states that:

“Every citizen is free to make political choices, which includes the right… to participate in the activities of, or recruit members for, a political party.

Confirmed by Constitutional Court

The Constitutional Court in 2012 confirmed (Ramakatsa and Others v Magashule and Others) this meant political parties had a constitutional duty to comply with provisions of their own Constitutions. The right to participate in a political party’s activities of a would mean nothing if the party could flout its own Constitution and rules.

As Justice Yacoob stated in his judgment: “… the right to participate in the activities of a political party confers on every political party the duty to act lawfully and in accordance with its own constitution.” Thus, our Constitution gives every member of every party the right to exact compliance with the constitution of a party by its leadership.

If a branch does not follow the provisions of the ANC Constitution (or the pre-announced electoral rules), it is thus acting unconstitutionally and unlawfully, and decisions taken would themselves be invalid.

If a PEC or the NEC were elected in non-compliance with the ANC Constitution or electoral rules, it would be as if it was never elected at all.


But what happens if the ANC National Executive Committee’s (NEC) – which includes its top six leaders – term ends without a new election having been held or if the election is nullified by the court because of irregularities?

Put differently, what will happen if the ANC’s conference this week collapse and elections for a new NEC can’t be held, or its results are taken to court and declared unconstitutional and invalid?

Its a tricky question, perhaps because the obvious answer looks rather scary. (For this reason, I would be surprised if delegates collapse the conference. It would be extremely short-sighted and would cause serious harm to the organisation. For the same reason cheating is most likely – only to occur if the cheaters believe they will not be caught.)

A duly elected, legally valid NEC, is pivotal for the proper functioning of the ANC. While branches are said to be its heartbeat, without a properly constituted and legally valid NEC, the party cannot function properly.

Rule 12.1 of its Constitution makes this clear, stating that the NEC “is the highest organ of the ANC between National Conferences and has the authority to lead the organisation, subject to the provisions of this Constitution”.

In terms of Rule 12.2.12: the NEC institutes “disciplinary proceedings against any member and temporarily suspend the membership of any member”. Furthermore, only the NEC can convene a National General Council (Rule 10.6).

Most importantly, without a validly constituted NEC, there will be no one with the legal authority to convene an elective conference.

The NEC appoints a Conference Preparatory Committee (Rule 10.2) and is also empowered to appoint the Electoral Commission (Rule 14) which’s task it is to run the election for a new NEC.

The NEC “except where otherwise stipulated, shall be elected by secret ballot by the National Conference and shall hold office for 5 (five) years.” (Rule 12.3) The term of office of the ANC NEC thus ends in December this year.

If the conference collapses or the election of a new NEC can be elected is declared invalid in court, it could create serious practical problems for the ANC. Its constitution does not foresee the possibility a NEC term coming to an end without there having been a valid election for a new NEC.

In such a case the best option would be to rely on Rule 29 of the ANC Constitution, which states: “A Special Conference of the ANC may be convened by the NEC at any time or at the request of a majority of the Provinces for the stated purpose or purposes. Inn such an instance:

  • At least one month’s notice of such Conference shall be given; and
  • The NEC shall determine participation, provided that branches are represented at such a Conference in proportion to their membership.

What happens if conference collapses

If this conference collapse, there will no longer be a legally functioning NEC, which means a conference could only be convened at the request of a majority of the Provinces (if there are validly elected PEC’s in the provinces, of course).

But the NEC will not exist so could not determine participation at the conference (nor appoint the Electoral Commission), which might give rise to very complicated and protracted legal challenges about who should be permitted to attend the special conference and who should run it.

The ANC Constitution does allow the NEC to “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”.

Perhaps, on a fancy legal argument, the NEC (while still validly in existence – and thus before the end of this conference) could invoke a rule to postpone the conference with 6 months and to extend its own life with 6 months. But it is at best unclear whether the Constitution allows for this.

Obviously, if the conference collapses, the NEC’s term come to an end and it would no longer have this long-shot legal option as it would no longer be legally constituted.

I would guess the best option in such circumstances would be for the NEC to ask the conference to extend its term with, say, 6 months, during which time a special conference could be organised, with the hope that no one challenges this legally uncertain extension in court.

However, if the conference collapses it can be done, it is unclear from the ANC Constitution whether the NEC could extend its own term or whether this power could be implied.

What is clear is that the power is not specifically granted by the ANC Constitution.

Problem of prior violations

Another potential problem may arise if it becomes clear that the ANC’s Constitution and electoral rules were violated by some branches when making nominations for the leadership of the party and delegates were selected.

Disgruntled members may approach the court to interdict the elective conference and prohibit it from taking place until all procedural illegalities have been fixed.

The losing side may also approach the court after the election of a new NEC to have the election declared invalid.

In both cases the term of the old NEC would have come to an end without a new NEC in place to fix the problem or organise new elections.

The Ramakatsa judgment makes clear that if irregularities did occur and can be proven, the court will have to intervene, and the conference will have to be postponed or its elective results nullified.

It may well be that none of these issues will arise.  However, if any of the problems do arise, it would ironically be the courts who would be best placed to fix it.

In such a case ANC members or branches could petition the court to legalise what otherwise might have been illegal. For example, they could argue the collapsing of the conference infringed on their section 19 rights to make political choices, which includes the right to participate in the activities of the political party of their choice.

If the court rules as such, it can make any order that is just and equitable to vindicate the rights of applicants.

This could include an order to extend the life of the NEC with 6 months, to allow it to arrange another elective conference, or for any other arrangement that would allow the party to elect new leaders in a manner that protects the rights of members to participate in the activities of the party.

Which means that if all else fails, the courts will have to protect the rights of party members and will have to fix the problem which might have been created by some members not adhering to the rules and the constitution of the party.

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(This is a slightly shortened version of an article by constitutional expert Pierre de Vos published on his blog Constitutionally Speaking.)

by Pierre de Vos

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