The ANC and its secretary-general, Fikile Mbalula, have suffered another legal setback after the High Court in Makhanda dismissed the party’s bid to appeal a ruling that declared the Eastern Cape Provincial Task Team (PTT) unlawful.
In a judgment delivered on Thursday, Judge Vuyokazi Noncembu dismissed applications for leave to appeal brought by both the ANC and the PTT, finding that neither had demonstrated reasonable prospects of success. The court also ordered both applicants to pay costs.
The court further dismissed a related application brought in terms of section 18(2) of the Superior Courts Act, which had been contingent on leave to appeal being granted.
The latest judgment effectively leaves intact the court’s 18 June ruling, which declared the establishment of the interim Provincial Task Team invalid and unlawful.
The legal challenge was brought by ANC members Lwazi Rotya, Sinethemba Mpande and Nompumelelo Mzothwa, who have successfully challenged a series of decisions taken by the party’s national leadership regarding the Eastern Cape.
Earlier this year, the trio obtained an interdict preventing the ANC from proceeding with its planned Eastern Cape elective conference.
Following that ruling, the ANC dissolved the provincial leadership structure and replaced it with an interim Provincial Task Team. The applicants returned to court, arguing that the party had acted outside the provisions of its own constitution.
Noncembu agreed in June, finding that the ANC had failed to satisfy the jurisdictional requirements contained in Rule 12.2.4 of its constitution before establishing the PTT.
Seeking to overturn that decision, both the ANC and the PTT argued that the court had erred in interpreting the ANC constitution and in granting what they described as final relief under the guise of interim relief.
The ANC further contended that the court had failed to consider material aspects of its case, incorrectly interpreted Rule 12.2.4, wrongly criticised extracts of the ANC National Executive Committee (NEC) minutes and granted relief that was not justified.
The PTT, for its part, argued that the court had misdirected itself by granting declaratory and review relief within interim proceedings and maintained that factual disputes should have prevented the granting of the order.
Noncembu rejected those arguments.
She found that the case had not turned on disputed facts but rather on the interpretation of the ANC constitution.
“There were no real disputes of fact that arose in the matter, as the matter was decided solely on the interpretation of the ANC Constitution,” the judge said.
She also rejected the ANC’s attempt to introduce a new justification for the establishment of the PTT during the appeal proceedings.
The ANC argued that the PTT had been necessary because the Provincial Executive Committee (PEC) had become dysfunctional.
However, the judge found that this had not been the case advanced during the original proceedings and could therefore not be introduced for the first time in an application for leave to appeal.
“This court notes the attempt by the ANC to recast their case in the leave to appeal application by stating that it was necessary for the PTT to be installed as the PEC was dysfunctional. That, unfortunately, was not the case they presented in the main application.”
The judgment further noted that the ANC’s own evidence had been inconsistent regarding the status of the Provincial Executive Committee.
While both the ANC and the PTT initially maintained that the PEC’s term had simply expired, the ANC later relied on extracts of NEC minutes suggesting the PEC had in fact been dissolved.
Noncembu said those inconsistencies did not alter the central finding that the ANC had failed to comply with its own constitutional requirements before appointing the PTT.
“Both applications for leave to appeal must fail,” she ruled.
Having reached that conclusion, the court also dismissed the section 18(2) application, finding that it could not succeed once leave to appeal had been refused.
The ruling marks another significant legal defeat for the ANC’s national leadership in its handling of the Eastern Cape, leaving the June judgment declaring the Provincial Task Team unlawful firmly in place unless the party successfully petitions a higher court.