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Dube and Others v Zikalala and Others (7904/2016P) [2017] ZAKZPHC 36

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Dube and Others v Zikalala and Others (7904/2016P) [2017] ZAKZPHC 36

12th September 2017

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[1] The eighth provincial elective conference (‘PC’) of the African National Congress (‘ANC’) for the Province of KwaZulu-Natal (‘KZN’) was held from 6 to 8 November 2015. Its propriety is the subject of dispute in this application.

[2] The First, Second, Fourth and Fifth Applicants[1] (‘the Applicants’), all members of the ANC, in their Notice of Motion seek the following order:

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‘(a) That the 8th KwaZulu-Natal Provincial Elective Conference of the African National Conference held at Pietermaritzburg on 6 to 8 November 2015 and its decisions, resolutions and elections are declared unlawful and invalid and, as such, are set aside;[2]

(b) Declaring that the recognition, approval and/or endorsement by the ANC (the Thirty-Ninth Respondent)[3] of the aforesaid Provincial Elective Conference, its decisions, resolutions and elections, are likewise declared unlawful, invalid and of no force or effect’;[4]

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(c) That’s (sic) the costs of the application are to be paid by the Thirty Eighth Respondent, the ANC, jointly and severally with any other party unsuccessfully opposing it, including the costs of two counsel.’[5]

[3] In Ramakatsa and Others v Magashule and Others[6] (‘Ramakatsa’), the Constitutional Court in regard to a similar attack on the propriety of the Free State provincial conference of the ANC held from 21 to 24 June 2012, said the following in regard to the relief claimed:

‘[124]   In our view, a declaration that the provincial elective conference of ANC and the decisions taken at the conference are unlawful and void should suffice. We emphasise that the declaration of invalidity applies only to the Provincial Conference. The declaratory order we make does not relate to or affect the rights of delegates who have been elected at properly constituted branch general meetings of the Free State province to serve as delegates at any other conference of the party.’

[4] No doubt influenced and guided by similar considerations, by the time this application came to be argued, the relief sought by the Applicants in the alternative to that originally sought in the Notice of Motion, as in Ramakatsa, was confined to an order that:

‘The Eighth KwaZulu-Natal Provincial Elective Conference of the African National Congress held at Pietermaritzburg on 6 to 8 November 2015 and its decisions and resolutions are declared unlawful and invalid.’

[5] The basis for seeking the aforesaid relief, whether as initially couched or confined to the alternative, in broad terms is:

(a) That the holding of the PC was unlawful as, contrary to the requirements of rule 17.2.1 of the ANC constitution, it had not been requested by at least one third of all branches in the province of KZN; and/or

(b) That the PC was affected by various material irregularities which occurred during the pre-conference period and/or at the conference itself relating to the auditing of branch membership, branches being allowed inadequate time for remedying any errors found, insufficient time being allowed for appeals against findings of the auditing committee, discrepancies in the accreditation of delegates, and the manipulation of the voting results at the conference.

There are various material factual disputes arising in respect of the irregularities alleged by the Applicants referred to in sub-paragraph (b) above. Confronted with that reality, the Applicants have nevertheless elected to argue the application on the papers, accepting that material factual disputes must be resolved in favour of the Respondents in accordance with the test espoused in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd.[7] This judgment proceeds on that basis.

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