AS THE African Nation Congress (ANC)'s national executive committee (NEC) meets on Saturday, it has two very difficult political and legal decisions to make, which could materially affect the outcome of this conference. And the party has to consider that should it move in the wrong way, the door could be open for frustrated members to challenge the ultimate outcome of the Mangaung conference as a whole.

On Friday, the Constitutional Court ruled that the Free State ANC nomination conference in June was null and void, and thus this province has no legally elected provincial executive committee.

Late on Friday night, the North West High Court said, after an application regarding the legality of the North West ANC's nomination conference, that it was up to the Mangaung conference itself to deal with the problems that had occurred. In effect, this could mean the Mangaung conference itself decides whether the North West delegates may attend.

ANC treasurer-general Mathews Phosa has suggested that these decisions are "awkward for the ANC, as we don't normally run our political activities through a court of law, but we are citizens of this country, and have to abide by its laws".

This NEC meeting could give scope for those on either side of the President Jacob Zuma/Deputy President Kgalema Motlanthe divide to create mischief.

Both the Free State and the North West supported Mr Zuma at their nomination conferences (although the Free State conference is now legally null and void), meaning his supporters will no doubt argue those provinces should attend. They could argue it would be undemocratic, at this stage, to prevent those people from attending, considering they were duly elected by their branches.

Numerical advantage

But Mr Motlanthe's supporters could say that in the Free State, branch general meetings were in fact supervised by a provincial executive committee that had no legal authority to do so, and thus those meetings themselves were null and void. They may also claim that in the North West, delegates had clearly been intimidated and the entire process would therefore not withstand legal scrutiny, should they vote at the Mangaung conference.

As the political calculus stands, while it would be detrimental to Mr Zuma to lose the Free State and North West delegates, he would still appear to have a numerical advantage over Mr Motlanthe. However, he may still be concerned that some delegates from the Eastern Cape, which appear to support him, may still turn against him.

Thus his backers could argue quite strongly in favour of retaining the North West and Free State delegations.

On Friday the Constitutional Court handed down only its order in the Free State case, and is due to hand down its reasons on Tuesday. This makes it harder to interpret the ruling.

The ANC may well be ruing the brevity of Deputy Chief Justice Dikgang Moseneke's ruling, as it appears to give few clues on this issue. However, the court was only asked to rule on the outcome of the June conference, and so can hardly be blamed for not giving any further direction.

What is unlikely to be discussed is the fact it may actually be the fault of Luthuli House itself, and more directly, secretary-general Gwede Mantashe, that the party is in this situation. It is Mr Mantashe's role to ensure that provincial conferences are held in a proper manner. The court says he failed here. It is also his responsibility to try to heal the long-running problems in the North West ANC. This he has failed to do. Mr Mantashe could well respond to this particular allegation by saying that some rifts are almost impossible to fix.

The NEC contains several lawyers who may well offer their assistance in resolving these interpretive disputes. However, it might be foolish for the NEC to consider accepting legal advice from people with their own political agendas.

Grootes is the host of the Midday Report on Talk Radio 702 and 567 Cape Talk.