Yengeni/Dlamini NEC exclusion — possibly an important disturbance in the Force

The ANC’s Electoral Committee told former ANC Women’s League leader Bathabile Dlamini and current NEC member Tony Yengeni, they are not able to contest for positions on the ANC’s NEC because of their serious criminal convictions (there may still be question marks around at least one other potential candidate, Mduduzi Manana). 

Their disqualifications may be important as to which direction the governing party takes after its elective conference, which begins on Friday. In short, the soul of the party, and whether people who have been found guilty of wrongdoing can still play a leadership role could be decided on these two not being able to throw their hats into the ring. At some point in the near future, the composition of the current NEC and the balance of power nationally could be decided by these removals — and pose legal questions about whether a voluntary association can act in this way.

In August, the ANC’s Electoral Committee published its rules and guidelines ahead of this conference. It was foreseeable then that both Dlamini and Yengeni may not be able to contest for another shot at NEC positions.

In fact, it could have been foreseen even earlier than that. In June, the committee’s chair, Kgalema Motlanthe, gave a series of interviews at the ANC’s policy conference in which he said he believed the ANC’s constitution should be enforced. And that would mean that people convicted of a serious offence should be expelled from the ANC, never mind be allowed to stand for a leadership position.

Since then, there was no protest or move against the rules. This could be crucial, as the committee may now argue it is simply applying rules that were accepted by everybody.

Of course, the problem that Yengeni and Dlamini may have had is that they did not want to draw attention to themselves, and to argue against the rules in advance would have been difficult. But this latest move has pushed them into a seriously weakened position. One wonders if Yengeni did object when the rules were adopted by the NEC. 

Dlamini has already said she will challenge the rules in court. Her attorney will have to argue in open court that she should be allowed to contest, despite being found guilty of lying under oath to a court. That would also remind voters of what she was lying about: the provision of social grants to the poorest of the poor in our society.

At the same time, the ANC is a voluntary organisation. One could imagine the consequences if its rules were overruled by a court. For example, could a court force such an organisation to accept certain people, despite what may be serious crimes in their past? For a political party, that would surely be unacceptable — if it cannot decide who is in its leadership, it would lose control of itself. 

That said, perhaps a key argument that her lawyers could make would be around Mduduzi Manana. The former deputy minister of higher education was caught on video assaulting a woman in the parking lot of a nightclub in 2017. He pleaded guilty and paid a fine.

If it is the case that Manana is allowed to contest, Dlamini’s lawyers could argue that this is inconsistent, that someone guilty of an act of violence is allowed to contest, while someone guilty of lying is not.

But Manana’s position is not clear. The secretary of the ANC’s Electoral Committee, Chief Livhuwani Matsila, refused to answer a question about whether Manana would be eligible, while speaking to Newzroom Afrika on Monday afternoon.

Which means there may be more surprises in store.

However, it is likely that Dlamini’s legal case will not get past the starting gate. This is because the Electoral Committee says she has not yet used their own internal appeal mechanism. And any court is likely to throw out such an application until she can prove she has used up every internal instance of appeal first.

Yengeni’s complex position

Ramaphosa’s opponents fall foul of rules