The ANC Free State conference held in May 2018, where Ace Magashule’s ally Sam Mashinini was elected provincial chair,  has been declared unconstitutional and unlawful.

Aggrieved ANC members in the Free State took the matter to the Supreme Court of Appeal after the meeting was convened in violation of a November 2017 high court order.

In 2017 the Free State high court declared that such a conference should not go ahead until all branch general meetings had been held in a lawful manner in accordance with the ANC’s constitution.

In May 2018 the province held a conference at which the appellants felt that branch meetings were marred by irregularities. The aggrieved members approached the court seeking an order declaring that the conference was held in contravention of the 2017 court order. However, the judge dismissed their case in 2019. They then approached the SCA to appeal the judgment.

The  SCA has reversed the 2019 judgment and declared the provincial conference invalid.

The judgment is a blow for Magashule as it means the ANC national executive committee may now have to appoint an interim structure. The Free State provincial executive committee was expected to lead the campaign to defend Magashule as he faces the possibility of being suspended should he not step aside as directed by the ANC's national executive committee (NEC) on Monday.

The Free State is Magashule's stronghold as he was ANC provincial chair there for more than 20 years.

In its ruling, the SCA said: “The order of the Court below is set aside and replaced by the following: It is declared that the Provincial Conference for the Free State Province that took place on 18 and 19 May 2018 was held in violation of the Court order of 29 November 2017 under casenumber 5942/2017 and that the said Provincial Conference, its decisions/resolutions and/or outcome are unlawful and unconstitutional. The declaration of invalidity mentioned in paragraph 3 of the order shall only be effective as from the date of the delivery of this judgment.”

In declaring the provincial conference unlawful, the SCA said every decision that was taken at the conference itself and every other decision since then was invalid, unlawful and unconstitutional.

This is based on complaints arising from several branch general meetings  in the Thabo Mufutsanyana region where delegates who voted at the provincial conference were elected. In several wards, the meetings either did not meet quorum requirements, the voting took place without an independent deployee to oversee them, attendees were not ANC members in good standing (membership either expired or in arrears) or  signatures were forged to make up a quorum.

The SCA said the province failed to conduct audits of membership in branches and regions less than nine months before the provincial conference, as required by the ANC constitution.

According to the SCA, the party had to audit all 309 branches in the Free State before convening a provincial conference, something that was not done ahead of the May 2018 conference.

“The importance of auditing is underscored by the fact that it ensures that the participants in the ANC process are fully paid up members of the ANC who can participate in the elections and vote for those they want to lead them and not non-members. Thus, prior to the holding of the PC an audit process of all branches and membership must be conducted,” the judgment reads.

“The question remains therefore whether the delegates to the elective PC had been properly accredited and audited as required in terms of the Constitution of the ANC and its Membership Audit Guidelines. As demonstrated above, the answer is a resounding no.”

In a statement released on Wednesday, ANC spokesperson Pule Mabe said they were still going through the judgment and would convene a special and urgent national executive committee meeting which would give direction.

“We call on all ANC structures in the province to remain disciplined and calm, whilst we study the judgment and its implications for the movement, and in particular the Provincial Executive Committee elected at the Conference. The National Executive Committee will convene urgently to give direction,” Mabe said.