Dan Kgothule, former Sports MEC in the Free State along with two other ANC members, Mokotso Mokotso and Mongi Ntwanambi, took the ANC to the South Gauteng High Court to seek an urgent application to declare the ANC’s Provincial list from the Free State as illegitimate.

According to the trio, the Free State provincial list conference on 10 December 2018 was “unlawful and unconstitutional” as the names of people who had not been nominated appeared on the final list and their names, all their they had adequate branch support, were excluded.

They requested the court, through an urgent application, to nullify the nomination of the 41 candidates who are on the ANC’s Free State list that has been submitted to the Independent Electoral Commission.

The group also requested that party branches in the Free State hold branch general meetings and a provincial list conference no later than 6 May, to nominate new candidates for the provincial and national party list before the elections.

Judge Thusi Mngqibisa heard the matter on Tuesday, 23 April and delivered a judgement on Wednesday 24 April. According to Mngqibisa, the “urgency is self-created”. The matter was struck the matter off the roll with costs to the applicants.

According to Advocate Anwar Albertus, who argued the urgency for the applicants, when the ANC list was finalised on 13 March 2019, it took his clients by surprise because by then they had been engaged in a three-month internal process to review the list.

Albertus presented the court with an affidavit from Elzabe Rockman, MEC of Finance in the Free State, who stated that her name is part of the provincial list of candidates even though she was not nominated, to show foul play when putting up the list.

From 8 December, said Albertus, the trio raised an objection about the validity of the Free State candidate list within the party and were assured that the matter will be looked into.

When the list was finalised and submitted to the IEC without their concerns being addressed, they then “engaged their attorneys” and “went from one senior counsel to another” to get proper representation until now, said Albertus.

Albertus stated how from 13 March the trio first approached Advocate Dali Mpofu who “sat on the matter for two weeks” until 22 March. When they realised they were not getting a response they took the matter to Advocate Barry Roux, with whom they disagreed on the right strategy on how to handle the case.

Albertus stated that this was not to cast “blame but to show the reason for the delay” and the need for the urgent application since his clients “could not go against the ANC without proper representation”.

“Time was lost trying to secure counsel,” said Albertus.

Albertus had argued that this was sufficient proof that there wasn’t any “culpable delay” on the part of the applicants when “considering all the relevant circumstances”.

According to Advocate Ishmael Semenya, who represented the ANC as the first respondent, the “adjudicating factor for urgency” is if one can prove that with certainty that it would be impossible to vindicate their rights on time.

Semenya referred to the ANC Code of conduct that states that it is the duty of party “to accept the final list as rectified by the NEC” and that there are procedures in place for recalling Members of Parliament or the Provincial Legislature which the trio can use after elections.

“Once you are not on the list for the Member of Parliament or Member of the Provincial Legislature, you can still challenge that after elections,” said Semenya.

William Mokhari, who stood for the second respondent, the Free State Provincial Executive Committee, argued that the applicants had not explained “why the matter is urgent and why they would not be afforded appropriate redress after elections”.

“They are not telling the court what would happen, that if the matter is not heard today, what irreparable harm would occur?” said Mokhari.

According to Mokhari, the “applicants have been tardy” as “they allowed their senior counsel to sit on the matter” until time ran out.

Mokhari stated how there was no proof of correspondence between Mpofu and applicants within the two weeks while they were consulting.

He argued that they were on a “shop forum” for a counsel that will agree on taking their “risky case” and “give them a chance”.

“The applicant cannot be allowed to delay the matter until they find a counsel that agrees with their strategy on the case and use it as a matter of urgency,” said Mohari.

“This frivolous application must be struck off the roll and include costs”.

Albertus had responded that after elections it will be “a completely different matter to challenge”.

“It will require a judicial act to remove someone who is part of the legislature. When the die was cast with regards to the finality of the list, they (applicants) jumped into action,” said Albertus.

Kgothule told Daily Maverick outside the court that the “urgency of the case” was not “orchestrated” as they had to “ventilate” all the internal processes of the ANC for three months before approaching the courts.

For him, he was surprised how although he was nominated by 31 branches, which is more than the 21 branches it takes to be included into the list, his name was not there.

Kgothule said he will accept the judgment by Judge Mngqibisa who had stated that “there is no explanation as to why they waited for two weeks to hear from their senior counsel” whereas a simple phone call would have cleared up the confusion.

However, Kgothule says that although the judge determined that his matter was not urgent he still plans to continue litigating the matter based on the merits alone rather than urgency.

ANC Spokesperson Dakota Legoete also spoke to Daily Maverick outside the court and dismissed the trio as “counter-productive” ANC members who risk the party “being removed from the ballot”.

According to Legoete, the trio are “deviant members” who are distracting them during the election season.

“They are derailing us from the campaign by bringing us to court for two days,” said Legoete.

For Legoete, the fact that the judge dismissed their case shows that they have no basis to stand and that their claims are frivolous. DM