High court orders ANC to reinstate Andile Lungisa after unlawful removal

The ANC has been left with egg on its face after the high court ruled that its decision to remove mayoral hopeful Andile Lungisa from its candidate list for Nelson Mandela Bay was unlawful and unconstitutional, finding that the party had failed to justify his removal shortly before the candidate-nomination deadline.

In a judgment handed down on Friday, 9 October, Judge Nelisa Mali ordered the ANC to reinstate Lungisa on its internal proportional representation candidate list and directed the party to submit his name to the Electoral Commission of South Africa (IEC) if the law permits it to supplement its list.

Lungisa had accused party Secretary-General Fikile Mbalula of removing his name after the ANC’s candidate-selection process had advanced to its final stages. However, the court did not find Mbalula personally liable. 

“The decision to unilaterally remove the applicant’s name from the second respondent’s proportional representation list was accordingly unlawful and unconstitutional,” Mali ruled.

The judgment comes as the ANC gears up for the 4 November local government elections, while also fighting the exclusion of 181 of its candidates in six municipalities by the IEC. The party has taken the matter to the Constitutional Court, which is expected to hear the case on Monday, 12 October.

Court questions authority to remove Lungisa

Lungisa had approached the Gauteng Division of the High Court in Johannesburg on an urgent basis after his name was removed from the list shortly before the deadline for submitting candidate nominations. The case was heard on 28 September. 

He argued that he had progressed through the party’s internal selection process and that his name was still on the list when the ANC’s National Executive Committee (NEC) met to finalise candidates on or about 27 August. 

According to the judgment, Lungisa was informed at 12.37pm on 28 August that his name had since been removed. This was despite being voted for by 35 out of the 60 branches and endorsed by communities in ANC wards.

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The ANC defended the decision, arguing that Lungisa had not completed the required vetting process and did not meet the party’s eligibility requirements.

However, the court found that the ANC had not adequately demonstrated that Lungisa had failed to attend the vetting process, which formed part of its defence.

“The respondents failed adequately to establish that the applicant did not attend the vetting process, which constituted their principal defence,” Mali said. “The evidence before the court, viewed as a whole, supports the applicant’s contention that he attended the relevant vetting process.”

The judge further found that the ANC had failed to establish that Mbalula had the authority to remove Lungisa’s name unilaterally at that stage of the candidate-selection process.

“The significance of this provision is that the internal rules themselves prescribe a defined decision-making structure. The Secretary-General’s function is not thereby converted into an unrestricted discretion to amend the final list,” the judgment reads.

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The court also questioned the absence of a clear explanation of which part of the vetting process Lungisa had allegedly failed to complete, who had the authority to disqualify him and whether a final decision had been taken before his name was removed. 

This is not the first time that Mbalula and Lungisa have crossed swords. In July 2023, Mbalula threatened to charge Lungisa for publicly contradicting the ANC’s position on the Public Protector’s report into the Phala Phala matter.

The ANC has not governed Nelson Mandela Bay outright since 2016, when it lost control of the metro for the first time. Since then, shifting coalitions have taken turns running the municipality, with Lungisa arguing that the instability and deteriorating services had deepened public frustration, Daily Maverick previously reported

Party rules cannot be ignored

The judgment makes clear that political parties have the right to select their candidates but must follow their own rules and act in accordance with the Constitution.

Mali cautioned against interpreting the ruling as giving Lungisa an automatic right to be selected as a candidate simply because he had been nominated through the party’s internal structures.

“The applicant’s right to participate in the activities of a political party is not a right to demand that the party select him as a candidate irrespective of its rules,” Mali said.

“Nor does section 19 entitle a court to substitute itself for a political party’s selection structures. It does, however, require that the party’s own rules be applied consistently with the Constitution.”

The judge found that the timing of Lungisa’s removal was significant, given that it happened shortly before the deadline for submitting candidate nominations and after the party’s internal selection process had advanced.

The court also considered Lungisa’s argument that Mbalula had abused his office and should be held personally liable. However, it found that the evidence did not establish the necessary grounds to impose personal liability on the secretary-general.

While the court has ordered the ANC to put Lungisa back on its candidate list, it is understood that this may only be possible through a supplementary proportional representation list after the elections. DM