Factionalism: Supporters of ANC secretary general Ace Magashule at Hertzog Square after his appearance at the Bloemfontein magistrate’s court in February. (Gallo Images/Alet Pretorius)
The ANC’s top six has given the party’s secretary general, Ace Magashule, until Sunday to announce his decision on whether he will step aside.
President Cyril Ramaphosa is said to have called the meeting of the party’s top officials, scheduled for Sunday, at which Magashule is expected to give a middle finger to the national executive committee (NEC) resolution to implement the contentious resolution.
And as the deadline approaches, several ANC provinces have asked the NEC for more time to discuss the decision with their branches, some of which are threatening revolt over the resolution.
Seeking opinions
The provincial executive committee (PEC) in Limpopo solicited a legal opinion regarding the request from the office of the secretary general that names be submitted of officials affected by the resolution.
The legal opinion, which the Mail & Guardian has seen, sets out that during the compilation of the names of the affected members, the PEC appears to have been confronted with a challenge in respect of one of its members, Danny Msiza, who has “raised legitimate concerns on the interpretation of the NEC resolution in so far as it pertains to his peculiar circumstances”.
The opinion concludes that the PEC should consider not supporting or taking a decision to subject Msiza to the consequences of the step-aside resolution, once again. Any act to the contrary may breach Msiza’s inalienable right to a fair and just administrative process.
Danny Msiza, a member of the ANC’s provincial executive committee in Limpopo was among VBS Bank suspects who appeared in the Palm Ridge magistrate’s court last month.. (Gallo Images/OJ Koloti)
Although the legal opinion agrees with the step-aside resolution on its merits and substance, advocate Moses Mphaga, who drafted the opinion, says that the implementation of the resolution may be open to challenge, in particular so far as it has adverse effects on the affected members’ constitutional rights enshrined in the Bill of Rights.
“Equally, in applying the aforesaid principles in respect of the delay in the implementation of the conference step-aside resolution, particularly where individual member’s constitutional rights may be adversely affected, is a material fact or consideration to be taken before such decisions are implemented,” Mphaga writes.
“It is also apparent that due to the delay and inconsistency in the implementation of the resolutions of the conference, some members against whom the integrity commission has recommended step aside, like Msiza and [Florence] Radzilani, have complied and thereafter [been] reinstated by the NEC.
“The current step-aside resolution seeks to revisit the decision to reinstate such members who may have stepped aside based on allegations of corruption and now have subsequently been formally charged,” Mphaga writes.
He recommends that the PEC should at this stage not submit the name of Msiza “subject to clarification of the aforesaid legal implications by the NEC”.
The M&G understands that the Limpopo PEC has adopted the 15-page legal document and plans to raise some of its content at the next NEC meeting on 8 May.
Mphaga notes that the principle of double jeopardy — although embedded in a criminal sense in section 35 of the constitution — is relevant in Msiza’s case, because he “has been subjected to an inquiry on substantively similar facts as in the current criminal case and subsequently reinstated”.
Provincial secretary Soviet Lekganyane said the Limpopo PEC had met and had accepted the NEC report on implementing the step-aside resolution.
“The PEC supports the step-aside policy and its procedures,” Lekganyane said.
He said the PEC had endorsed the list of all members who were criminally charged and had agreed to submit it to the NEC.
The PEC would engage with the NEC within the framework provided by the guidelines about how to deal with the situation of Msiza, who had previously been directed to step aside.
ANC provincial structures still concerned
The M&G understands that at least five provinces have raised concerns with the national officials about the consequences of the resolution for the party.
This discussion is expected to take centre stage when the party’s highest decision-making body between conferences meets next week at the St George’s hotel.
The ANC has decided to hold its meetings in person after the virtual NEC meetings were leaked on social media.
Treasurer general Paul Mashatile’s efforts to allay fears over the resolution is said to have fallen short when he met the Gauteng PEC last week, flanked by Nkosazana Dlamini-Zuma and Pemmy Majodina.
The PEC instead told Mashatile that more consultation was needed before the resolution was implemented.
Sources in the NEC told the M&G that this view was also shared by Western Cape, Mpumalanga and KwaZulu-Natal.
Ramaphosa heard as much when he met the KwaZulu-Natal PEC during his official visit to the province earlier this month.
“He only gave us 30 minutes of his time but in [that] time, the president was told by the chair [Sihle Zikalala] that this resolution will have far-reaching consequences [for] the organisation. We felt that we needed more time to discuss this with the branches, which is why we have asked that we meet with the officials before the NEC sits,” one PEC member said.
Zikalala told the M&G that the meeting with the officials will be determined by availability, adding that it was a priority for the KwaZulu-Natal PEC. Zikalala said the NEC had a right to implement conference resolutions.
He added that: “We said the terms and conditions of stepping aside must be clarified: [firstly], whether a person who steps aside should not participate in any structure; secondly, the stepping aside should not seek to replace comrades elected at conference.”
Provinces had initially asked for a week’s extension to submit names to the secretary general’s office when the deadline of 15 April was set.
Magashule compiles his own list
Magashule’s own list — which he is expected to share at next week’s national working committee (NWC) — is said to include some of those within Ramaphosa’s camp.
A source close to Magashule told the M&G that he was standing his ground that the scope of the step-aside resolution should be widened to include those accused, alleged and reported to have transgressed the law.
Magashule is expected to attend the meeting armed with a dossier of names that include NEC members Ronald Lamola, Zizi Kodwa, Khumbudzo Ntshavheni, David Mabuza, Gwede Mantashe, Paul Mashatile, Nomvula Mokonyane and Fikile Mbalula, among others.
“He will not back down that if this resolution must be implemented it must be implemented to the letter. He intends to call into question those names [that] have been flagged either by the state capture commission [or] legal reports, and those affected by charges that have been dropped for lack of evidence. These people are also tarnishing the good name of the organisation,” the insider said.
Magashule previously wrote to secretaries demanding the scope be widened, however, the NWC vetoed his letter a week later.
In the letter, Magashule pointed to the December 2017 Nasrec resolution that reaffirmed the 2015 national general council resolution that “ANC leaders alleged to be involved in corrupt activities should, where necessary, step aside until their names are cleared”.
The resolutions also state that cadres accused of, or reported to be involved in, corruption immediately step aside or face a disciplinary committee.
Ace allies also tackled
Meanwhile, Magashule’s ally Supra Mahumapelo was dealt a fatal blow this week when he was suspended from the party for five years by the provincial disciplinary committee for sowing division.
In a meeting with branch members in Mahikeng on Thursday, Mahumapelo said he was not suspended as of that moment, because he had written to the national disciplinary committee to appeal the ruling.
An ANC member close to the North West leader said he was also going to approach the courts to interdict the ruling.
“Court action by those affected by the step-aside resolution will take centre stage in the next few months. Some regions have also indicated that they will interdict this decision if … [it is] effected,” the source told the M&G.
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