Mayibongwe Maqhina|Published
Outgoing ANC councillor in the City of Cape Town, Anele Gabuza, again lost his bid to be reinstated as the party’s Ward 98 candidate to stand for the local government elections for a fourth term in Khayelitsha.
Western Cape High Court Judge Daniel Thulare on Monday threw out Gabuza's urgent application after finding that there were no grounds to review the decision to remove him as candidate and declare unlawful the election of Yanga Mjingwana.
“His case shows that he and the branch leaders were not happy with the decision, but that is no ground to review that decision,” Thulare said.
Gabuza brought the application earlier this month after his urgent application was dismissed last month.
Gabuza, who is also a member of the Dullah Omar regional executive committee, had asked the court to direct the Independent Electoral Commission (IEC) to register him as the ward candidate councillor.
Dispute over Mjingwana’s matric certificate
Although the ANC and its secretary-general Fikile Mbalula had filed notice to oppose the application, they withdrew the opposition on the morning of the hearing and urged Gabuza to withdraw the application at no cost and to engage the internal processes.
Gabuza told the court that he had obtained the highest number of votes at the second meeting nominating the candidate councillor, but his name, to be submitted to the IEC, was removed and replaced by Mjingwana.
“I was not given any reasons whatsoever for my removal or given an opportunity to respond or to make representations before the impugned decision was taken,” he said.
Court papers detailed that the branch executive committee (BEC) lodged a dispute over Mjingwana’s matric certificate and his failure to submit a CV to the committee.
Thulare said vetting and interviewing was not a BEC competency in terms of the ANC guidelines for nomination of councillors.
Gabuza’s own vetting was also questioned
“The guideline notes what it termed gate-keeping tendencies. With its conduct on the candidate selection process, the BEC made itself guilty of that tendency.”
He also said the guidelines provided that a person who did not have a matric but met all the other criteria could become a councillor and that the decision remained with the national executive committee.
“The tavern bouncer attitude and approach of the BEC in gatekeeping towards the candidature of Mjingwana was not in line with ANC policy, and Gabuza was ill-advised to rely on it.
“It is the responsibility of the Provincial List Committee to ensure that Mjingwana submitted the required documents and to take all the necessary actions required for purposes of vetting and interviews.”
Thulare further said the BEC was a complainant when they should have investigated and presented evidence to the Provincial List Committee.
“The complaint exhibits bias and not impartiality and is out of sync with the role, responsibilities and character of a BEC of the ANC,” he said, adding that the BEC over-reached on allegations of a criminal conviction of Mjingwana.
The judgment showed the lengths the BEC went to exclude Mjingwana and place a BEC member as Gabuza’s alternative.
“The BEC messed up the branch candidate selection process in the ward. Their hostile mindset towards one of the contestants, Mjingwana, did not only compromise them, but the process as well.”
IEC warns of disruption to election preparations
However, Thulare observed that the BEC was silent on the vetting of Gabuza.
“I do not know if Gabuza was screened and vetted, and if so, whether the outcomes qualified him to be a ward councillor for the ANC. Gabuza elected not to take this court in his confidence on this important material issue,” he said.
Thulare added that Gabuza owed it to the court to set out facts that ANC had acted contrary to councillor guidelines.
“Gabuza did not engage with what his own papers show, to wit, that the ANC preferred Mjingwana as the community-preferred candidate in line with the principles in clause 1.6 of the guidelines.”
The judge noted that the IEC had opposed Gabuza’s relief to register him as candidate on the basis it was too late to be implemented.
Gabuza instituted the application two weeks after the IEC started printing ballot papers.
“There is no doubt that what Gabuza asks of this court, would disrupt the IEC preparation for the elections and tends to undermine their freeness and fairness. Gabuza approached the court and left no time for preparation for the implementation of the order he sought,” he said.