The Gauteng High Court in Johannesburg has ruled that ANC secretary-general Fikile Mbalula acted unlawfully and unconstitutionally when he removed National Executive Committee member Andile Lungisa from the party's proportional representation (PR) list for Nelson Mandela Bay, weeks before the 4 November local government elections.

Judge Nelisa Mali handed down judgment on Friday 9 October. Whether Lungisa can actually appear on the ballot now depends on whether the Electoral Commission of South Africa (IEC) allows the ANC to supplement its list.

What the court ordered

The court declared Lungisa's removal unconstitutional, unlawful and invalid. Judge Mali said the decision to "unilaterally remove the applicant's name" from the PR list was unlawful and unconstitutional, and that the respondents "failed to establish that the first respondent had authority, acting unilaterally".

The order, as reported, requires the ANC and the other respondents to:

  • restore Lungisa's name on the party's internal list at Luthuli House;
  • resubmit him on the PR list for Nelson Mandela Bay for the 4 November elections;
  • include him on a supplementary list, if the IEC allows the ANC to supplement its list under item 17(1) of Schedule 1 to the Local Government: Municipal Structures Act; and
  • pay his legal costs.

Reports differ on whether Mbalula himself is liable for costs: one says he was not found personally liable.

The IEC distanced itself from the case and told the court it did not oppose the application in substance. It pointed to statutory limits on submitting and supplementing party lists. The judgment notes the court "cannot grant an order requiring the commission to act contrary" to electoral law. One report says that means Lungisa may only be restored through a supplementary list.

The dispute

Lungisa, a former Nelson Mandela Bay mayoral committee member and mayoral hopeful, took the party to court on an urgent basis. The case was heard on 28 September.

He says his name was still on the list when the NEC met on or about 27 August, and that he was told at 12.37pm on 28 August that it had been removed. He says 35 of 60 branches voted for him. He accuses Mbalula of removing him late in the process and abusing his office. These are Lungisa's claims.

The ANC argued that Lungisa had not completed the required vetting and did not meet eligibility requirements. The court was not persuaded. Judge Mali found the evidence "supports the applicant's contention that he attended the relevant vetting process". She questioned the lack of clarity on which vetting step he allegedly missed, who had the authority to disqualify him, and whether a final decision had been made. Even if parts of the vetting were incomplete, she found the respondents had not shown Mbalula could act alone at that stage.

The judge said parties may select their candidates but must follow their own rules and the Constitution, and that the secretary-general's role is not an unrestricted discretion to amend the final list. She also said the right to take part in party activities does not guarantee selection, and that courts cannot replace a party's selection structures.

Mbalula and Lungisa have clashed before: in July 2023, Mbalula threatened to charge Lungisa over comments on the Public Protector's Phala Phala report.

What happens next

The ANC has not said publicly, in the coverage we reviewed, whether it will comply or appeal. A weekly political calendar says the party plans to appeal; we have not seen the party say so itself.

The ruling lands in the middle of a wider candidate-list fight. The ANC is asking the Constitutional Court to reinstate 181 candidates the IEC excluded in six municipalities over a missed "submit as final" step, and that case was listed for hearing today. The IEC's rules on list changes, which limited what the High Court could order, are likely to matter there too.

We do not yet know whether the IEC will allow a supplementary list for Nelson Mandela Bay, or how the ANC will respond.