Amid relentless State Capture revelations at the Zondo commission, ANC acting national spokesperson Zizi Kodwa put on public record that ‘the ANC is incorruptible’, shifting focus to those named in ‘individual capacity’. When the State Capture claims again arose at Tuesday’s ANC lekgotla briefing, Kodwa responded: ‘The ANC can’t on the basis of one testimony, of one witness rush to find someone guilty.’ But political parties are nothing without members — policies alone do not make a political party.

Does the Constitution define or talk of political parties given that it is the supreme law of South Africa?

Not in any detail. But political parties are centrally part of South Africa’s constitutional democracy in the founding provisions that set out the founding values of human dignity, equality, non-racialism and non-sexism. As Section 1(d) states:

“Universal adult suffrage, a national common voters roll, regular elections and a multiparty system of democratic government to ensure accountability, responsiveness and openness.”

And Section 19 sets out political rights of individuals:

“Every citizen is free to make political choices, which include the right to form a political party, to participate in the activities of, or recruit members for, a political party and to campaign for a political party or cause”.

The Constitution in Section 116(2) says the national and provincial legislatures should allocate “financial and administrative assistance to each party represented…” while, crucially, Section 199 prohibits members of the security services — police, defence force and intelligence — “further, in a partisan manner, any interest of a political party”.

What are political parties, legally speaking?

They are voluntary associations, voluntary organisations or common law (voluntary) corporations. Which one may depend on the party constitution, according to retired Constitutional Court Judge Kate O’Reagan in the “Political Parties: The missing link in our Constitution?” paper to the August 2015 “Political Parties in South Africa: The interface between law and politics” conference by University of Cape Town law school and politics department and MyVoteCounts. Voluntary corporations have a legal personality separate from their members, said O’Reagan, and thus have “the capacity to acquire rights and incur obligations separate from their members, and the capacity to sue or be sued in their own names”.

That applies to just about every political party in South Africa — it is stated expressly in the ANC and DA party constitutions — if one were to look at court cases.

The DA has brought plenty court actions in its name as a political party against one-time SABC boss Hlaudi Motsoeneng or former president Jacob Zuma, including the spy-tapes case that successfully reviewed the prosecuting authority’s controversial dropping of corruption and related charges against Zuma on the eve of the 2009 elections that brought the then ANC president into the Union Buildings.

The EFF brought the landmark March 2016 Nkandla court case, in which the Constitutional Court found Zuma had violated his oath of office and Parliament had acted inconsistently with the Constitution over how it handled the Nkandla debacle. In December 2017 the EFF, with other parties, also successfully clinched the Constitutional Court judgment that told Parliament to implement impeachment rules in line with Section 89 of the Constitution. And the United Democratic Movement (UDM) brought the crucial June 2017 secret ballot case.

The ANC, meanwhile, has been hauled to court by those it has owed money to — and its members, disgruntled at how the organisation is conducting its internal business. Most recently that was in relation to various provincial conferences in the Eastern Cape and KwaZulu-Natal, but it dates back as far as the ANC’s 2012 centenary conference at its founding venue, Mangaung, after the Free State delegation was interdicted over what was ultimately deemed a flawed provincial elective conference held in June that year.

So political parties are voluntary organisations in law. What does that mean?

A political party is like a club — it can essentially do what it wants, and can pretty much declare whatever it wishes in its constitution. It is the political party itself that determines its organisation, internal operations, membership criteria, it’s vision and mission — and its disciplinary codes and proceedings.

The status of political parties as voluntary associations was presented by the ANC, New National Party, DA and IFP to oppose a 2003 civil society push for transparency in private party political funding, spearheaded by Idasa. The Western Cape High Court ultimately ruled against the Idasa application, given undertakings to legislate private party political funding that effectively took 13 years. The private political party legislation was passed by Parliament in late 2018.

At the time of delivering his ruling in 2005, Judge Bennie Griesel noted an “uncharacteristic display of solidarity across party-political divisions”. All emphasised how political parties were voluntary associations. “The respondents… emphasised the private nature of political parties as voluntary associations. They pointed out that, although political parties — both here and in other democracies — have very high public profiles and play very prominent public roles, they are voluntary associations, which are created and regulated by their own constitutions and not by legislation. The fact that a political party’s actions may on occasion attract widespread public interest does not make its functions ‘public’ in the legal sense,” reads the judgment.

What must political parties do for their members, if anything?

A party political constitution must be in line with the Constitution and the law, as must be its internal practices. When a political party does not do that, it gets dragged to court by members, often successfully. Former DA Cape Town mayor Patricia de Lille is one example; others are various ANC groups such as Mpho Ramakatsa, who with five others took on then Free State ANC chairperson and premier Ace Magashule, today the ANC Secretary General, to successfully overturn the June 2102 Free State party conference.

Internal democracy and constitutional compliance by political parties was the outcome of the Constitutional Court case CCT109/12, or Ramakatsa and Others v Magashule and Others. Then deputy chief justice Dikgang Moseneke and fellow Constitutional Court Judge Chris Jafta delivered the majority judgment, highlighting the need for political parties to give effect to Section 19 of the Constitution as participation in political activity is central.

“In our system of democracy political parties occupy the centre stage and play a vital part in facilitating the exercise of political rights,” said the judgment, adding later:

“It cannot be gainsaid that success for political parties in elections lies in the policies they adopt and put forward as a plan for addressing challenges and problems facing communities. Participation in the activities of a political party is critical to attaining all of this.”

If the ANC is a voluntary organisation, and there are rules on how it must conduct itself in line with the law and Constitution, can it actually act against its members?

Yes, it can as can all other political parties. It may be a bumpy ride ending up in court when general legal and constitutional principles such as fairness, administrative justice and the like are violated.

The bottom line is that it is the political party itself that determines its internal operations, policies including those it would pursue if elected into government, and the disciplinary code and proceedings.

If the ANC follows its constitution, there shouldn’t be issues, political will willing.

The ANC constitution says in Section 4.1 that any adult South African can join as long as they accept the party’s progammes and “are prepared to abide by its constitution and rules”. Those rules include a membership oath that includes the pledge “that I am joining the Organisation voluntarily and without motives of material advantage or personal gain”.

Regarding disciplinary action for misconduct any one of the top six officials from president down, the National Executive Committee (NEC), that is the highest decision-making structure between the five-yearly national councils, National Working Committee or any of the provincial, regional or local structures or officials serving on those structures can start such proceedings.

Section 25.17 of the ANC constitution sets out various acts of misconduct, including:

• Breaching the membership oath;

• “Engaging in any unethical or immoral conduct” that detracts from the ANC’s values and integrity that “brings or could bring or has the potential to bring or as a consequence thereof brings the ANC into disrepute”;

• “Soliciting or accepting any bribe for performing or not performing any task pertaining to or in connection with the ANC; and

• “Abuse of elected or employed office in the organisation or in the state to obtain any direct or indirect undue advantage or enrichment”.

Misconduct counts also include imprisonment without the option of a fine after a guilty verdict on any offence, and a conviction for fraud, theft of money, corruption, money laundering, racketeering or any other act of financial impropriety.

The ANC constitution is not exceptional; the DA federal constitution includes similar misconduct counts such as acting “in a way which impacts negatively on the image or performance of the party” or “in any manner whatsoever which results in him or her being found guilty of a serious criminal offence by a court of first instance”.

And it’s important to remember that Zuma, in his April 2017 court papers in the UDM application for a secret ballot in the upcoming no confidence motion, argued that because “political parties that are the main constitutive element of the democratic process”, it was party discipline above all.

Chief Justice Mogoeng Mogoeng, in handing down judgment on 22 June 2017, giving the National Assembly Speaker the decision, had a very different take.

“Nowhere does the supreme law provide for them (MPs) to swear allegiance to their political parties, important players though they are in our constitutional scheme. Meaning, in the event of conflict between upholding constitutional values and party loyalty, their irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail…”

There seem to be plenty of misconduct counts to throw at errant ANC members. Why is there no action, even as the ANC talks restoring its integrity?

The short answer — politics, internal party power politics. Action seems to depend on who holds the party reins and how tightly. Given the finely balanced power balance following the 2017 Nasrec ANC national conference that saw Cyril Ramaphosa gain the party presidency by just 179 votes, strategic and tactical consideration may go against bringing disciplinary charges.

ANC insiders have argued that it was politically tricky to avoid accusations of purging if those closely associated with Zuma are ditched, like Environmental Affairs Minister Nomvula Mokonyane or Minister in the Presidency for Women Bathabile Dlamini, who is also ANC Women’s League president.

The ANC has a rather inglorious track record of acting against its members, as is illustrated by various organisational reports that recount how those facing serious allegations invoke the innocent until proven guilty principle rather than stepping aside, even if requested to do so in the interests of preserving the integrity of the party. Or even against objective findings from, for example, Parliament’s State Capture inquiry that Malusi Gigaba and his successor at public enterprises, Lynne Brown had been “grossly negligent”. Gigaba instead resigned, although he remains on the NEC.

And that approach seems to also hold true when it comes to the ANC selecting its lists of public representatives to the national and provincial legislatures. ANC Deputy Secretary General Jessie Duarte in early January 2019 is quoted by EyeWitness News saying:

“Where a person hasn’t been judged criminally, and there’s no decision by a judge finding him/her guilty or has been sentenced to a jail term. There’s very little that we do, in term of the broader perspective that might emerge around particular individuals.”

The vetting process the ANC list conference agreed to in early January 2019 is still under way. On the face of it the criteria include “no history of ill-discipline or corruption”, must not have a post-1996 criminal conviction of more than 12 months’ jail without the option of a fine — this is in line with the criteria set out in South Africa’s Constitution — must have skills, experience to contribute to the legislative programme and “must enhance the integrity of the ANC”, or as it’s often been said in the past month – the candidate must boost the ANC’s electability.

The bottom line: The ANC seems to have decided it’s better to ride it out, rather than take steps that may inflame factional fissures.

On Tuesday the ANC agreed the damning claims at the Zondo State Capture commission were “damaging”, as ANC NEC member Lindiwe Zulu put it, but that there would be no asking the implicated, such as Mokonyane or ANC veteran MP Vincent Smith, to step down.

Implicated was implicated, not found guilty — and there was yet other testimony to come, including from the ANC towards the end of the Zondo commission to set out what the party knew or didn’t know and what it did or not, according to the ANC lekgotla briefing televised on eNCA.

“The ANC can’t on the basis of one testimony, of one witness rush to find someone guilty” was how Kodwa put it, adding later:

“We don’t use this commission to find people guilty”.

And that is the right of the ANC that, as political party, is a voluntary organisation that sets its own rules and practices. DM