ANC secretary-general Fikile Mbalula broke his own party’s rules and the Constitution when he single-handedly struck Andile Lungisa off the ANC’s Nelson Mandela Bay election list hours before the deadline, the Johannesburg High Court has ruled.

Judge NP Mali on Friday declared the removal unconstitutional, unlawful and invalid, but the decision came too late to put Lungisa back on the ballot for the November 4 local government elections.

Mali ordered Mbalula, the ANC and its national executive committee to restore Lungisa’s name to the party’s internal list immediately and to pay his legal costs on the punitive attorney and client scale.

Mali found the ANC’s rules gave the secretary-general no power to change a final list on his own.

“A final list could apparently be altered by an individual office-bearer on the eve of the statutory deadline, notwithstanding the elaborate multi-stage process designed to ensure collective consideration and approval of candidates,” Mali said.

“Such an interpretation would substantially diminish the safeguards created by the internal rules themselves.”

Lungisa, a member of the ANC’s national executive committee, was announced as a shortlisted mayoral candidate at a party event on August 22, and the committee finalised the lists with his name on them around August 27.

At about 12.37pm on August 28, with the IEC deadline at 5pm, Lungisa discovered his name had been removed.

Mbalula wrote to him that he had failed to attend vetting and biometric fingerprinting, and demanded official proof that his criminal record had been expunged.

Lungisa told the court Mbalula instructed officials to remove him, saying he would cause “problems” if allowed to stand.

Under the ANC’s own rules, no one could be taken off the lists unless disqualified by vetting or voted out by 90% of the extended national executive committee.

Mali found the ANC’s papers did not explain what the vetting involved, which part Lungisa missed, who could disqualify him or which rule allowed Mbalula to act alone.

Mbalula himself said in his papers that his letter was not a final decision.

“A party seeking to justify a decision must place before the court the factual basis upon which that decision was taken,” Mali said.

“If there was no final vetting outcome, it is difficult to identify the legal or internal basis upon which the applicant was treated as disqualified and his name removed from the final list.”

The judge found the evidence as a whole supported Lungisa’s version that he had attended vetting.

“The applicant was entitled at least to have the rules governing his candidacy applied consistently and in accordance with their terms,” Mali said.

“Political parties are constitutional actors in an electoral democracy, and their internal processes for selecting candidates are directly connected to the exercise of political rights.”

The ANC also pointed to Lungisa’s criminal record, arguing that the date he went on parole did not prove when his sentence ended.

Lungisa was sentenced on May 9 2018 to three years in prison, with one year suspended, for hitting DA councillor Ryno Kayser with a glass water jug during a Nelson Mandela Bay council meeting in 2016.

He began serving the sentence on September 17 2020 and argued that five years had passed by May 9 2025, making him eligible to stand.

The IEC, which did not oppose the application, told the court it could only accept Lungisa’s name on a supplementary list, which it may call for after the election if the ANC’s list holds fewer names than the seats it wins.

Mali ordered that Lungisa’s name be on any such list.

The judge rejected Lungisa’s request to hold Mbalula personally liable, finding the papers did not establish bad faith or a personal motive.

IOL