Free State ANC: SCA failed to apply its mind, confused facts

By Loyiso Sidimba Time of article published Apr 22, 2021

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Cape Town - THE ANC in the Free State is heading to the Constitutional Court to challenge last month's Supreme Court of Appeal's (SCA's) ruling declaring the governing party's 2018 provincial conference unlawful and unconstitutional.

At the provincial conference, Free State police, roads and transport MEC Sam Mashinini was elected provincial chairperson and replaced ANC secretary-general Ace Magashule after his election at the governing party's national conference in December 2017.

The ANC Free State’s appeal to the apex court appears to be in defiance to the ANC national working committee’s recent appointment of former president Kgalema Motlanthe to find a political solution to factional battles, build united and vibrant structures in the province.

In papers filed at the Constitutional Court on Monday, Mashinini accused the SCA of not applying its mind to the matter, confusing facts, improperly attributing conduct to counsel on wrong facts, confusing who said what at what stage of the proceedings and who represented who and who did not participate

”This state of affairs cannot be countenanced due to the heightened standard expected from the SCA as the highest court before this court. This is so particularly when dealing with a matter of such huge public importance,” reads Mashinini’s founding affidavit.

According to Mashinini, the SCA made an obvious error, which is demonstrative of its failure to apply its mind to the matter, by assuming that the ANC national participated in the appeal despite the court excusing Ishmael Semenya SC, who represented the party’s national office, from the hearing.

”Semenya never participated in arguments and was excused from participating because no relief was sought against his client … These repeated factual errors in the SCA judgment are demonstrative of the SCA’s failure to apply its mind to the matter and thus unable to apply the correct law to the correct facts,” Mashinini stated.

The ANC in the Free State wants the Constitutional Court to substitute the costs order awarded against the ANC national with an order that the respondents (disgruntled ANC members Matshepo Ramakatsa, Themba Mvandaba and Shashapa Motaung) must pay the costs of the party’s national office in the high court application and the leave to appeal in the high court.

The ANC national was successful in both the main application and leave to appeal as the three members’ bid to nullify the 2018 provincial conference was dismissed with costs.

However, Ramakatsa, Mvandaba and Motaung succeeded on appeal at the SCA on March 31, with the country’s second highest court declaring the provincial conference was held in violation of a November 2017 court order that found 28 annual and branch general meetings unlawful, unconstitutional and and/or in breach of the ANC’s constitution.

The SCA also declared the provincial conference, its decisions/resolutions and/or outcomes unlawful and unconstitutional and that the declaration of invalidity is only effective as from the date of the delivery of the judgment.

Political Bureau

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