The Constitution of the ANC has been subjected to intense scrutiny in our country’s courts in the last few months as many ANC members sought relief from the courts due to its perceived misinterpretation by various leadership structures across the country.
The ANC has long expressed its discontentment and even disdain for those members who have sought to use the courts to force the party’s hand into certain decisions, especially those who are perceived not to have exhausted all the internal processes of the ANC in dealing with grievances. The current moment however, where seemingly all layers of ANC internal governance are perceived to be polluted, from Branch Executives to National Executive, many members have expressed low levels of confidence in getting objective judgement from ANC internal processes and have instead chosen to seek that objectivity from the courts.
Depending on how one views ANC’s place in society, whether one sees ANC as part of society, subject to all the ordinary legal requirements expected of any organization or whether one sees ANC as the overarching organization which should be above the ordinary day to day entanglements of normal society, certainly not going in and out of court, one may react differently to the barrage of court processes the organisation has been subjected to lately.
There are clear opportunities however and clear benefits in choosing to view ANC through the lenses of the former. The court case against Kwazulu Natal Provincial Executive Committee (PEC), above everything, provides a great opportunity for some refinements in the ANC constitution given some of its wording that the judge considered superfluous and had to cut through the unnecessary layers in order to prevent the unintended confusion.
There are two things that stand out for me from the KZN High Court Judgement. Firstly it’s the interpretation of Rule 17.2.1 of the ANC Constitution. Secondly it’s the meaning and application of the 70% audit regulatory requirement for conference.
The 4 Applicants, all ANC members, as the judgement states, were seeking relief on the basis that rule 17.2.1 was not followed by the respondents (ANC KZN PEC) in holding the 8th Provincial Congress on 6-8 November 2015.
Rule 17.2.1 says (The Provincial Conference Shall) be held at least once every 4 (four) years and more often if requested by at least one third of all branches in the Province.
The respondents (PEC) claim that the applicants wrongly interpret and construe rule 17.2.1 of the ANC constitution, in the context that although the Respondents admit that no request by one third of the branches was made for the holding of the PC, no such request was necessary, and the PC accordingly was valid.
Because this is still on appeal I will not venture whether I think the respondent is right or not save to say my interest is the comments the judge made as he unpacked rule 17.2.1 and what it could mean and whether this does not pose an opportunity for the upcoming ANC 54rd congress to amend the constitution and make the rule more crystal and neat.
As the judge says, ‘The issue is what is meant by ‘at least once every 4 (four) years’, similar to, in the case of the National Conference, ‘at least once every five years.’
Although the judge does not state it instructively, he would have preferred the wording of Rule 17.2.1 to simply say, ‘the provincial conference must be held every fourth calendar (as the most sensible and business-like or practical interpretation of rule), than ‘once in 4 years.
Then the Judge goes deeper. ‘There is nothing specifically significant about the words ‘at least once’. It means once. The judge is mindful that all words in an agreement should be accorded a meaning in the process of interpretation, but he concludes that these words appear to be largely superfluous.
This brings to question the careless use of words without any legal implication or potential of confusion thereof. Again the NEC must relook at the wording of this rule.
The neatness of this rule will ensure that if the conference is held before the fourth calendar year, then it must meet the second element of the rule, that is, it must be called by a third or more of the branches in good standing.
Then there is the 70% regulation which is interpreted as meaning a conference can convene if there is a minimum of 70% branches that have successfully completed all steps in the pre process for the conference.
The PEC interprets this to mean ‘as long as 70% of the branches in the region meet with the pre-conference processes then the conference can proceed. The remaining 30% no matter how valid their complaints, cannot prevent the Provincial Conference from proceeding, nor can they complain afterwards if it does.’
The judge however disputes this and says, the constitutional rights and entitlement of members and branches cannot, for the purpose of demonstrating the 70% principle, be violated in the run up to qualifying to participate in a provincial conference, and that violation then be justified on the basis that at least 70% of other branches had qualified. The application of the 70% rule to that situation would be misdirected, improper and irregular.
The first problem here is that this is just a regulation that has no constitutional imperative and those who seek to sidestep rules do not take it as serious as they should. So the NEC must consider constitutionalizing this 70% minimum rule. However it must constitutionalize it with proper legal interpretation.
The Judge is correct that the intention of the 70% rule is largely administrative and it can’t have been intended that the conference should simply target 70% audit and care less about the other 30% irrespective of grievances or rationality. This leaves a risk that a PEC seeking reelection can slice and dice a province according to the 70% that will let them win and leave the challenging 30% and claim to have been ready for conference based on this rule.
The judge rejects this, as we all should.
There are many aspects of the KZN judgement that speak to the need for the coming 54th National conference of the ANC, which naturally reviews its constitution and makes any amendments where necessary, to relook at all the court judgments and refine the constitution where necessary.
Yonela Diko is a Communications Strategist