Sources inside the talks said the NWC had decided to take a safer option and exhaust all internal processes while it investigated a charge of misconduct against the defiant party leader.
“We can’t be making a decision to expel him while the court process is underway. There was an understanding by the NWC that the secretary general must be engaged, however in the interim, an investigation into charging him with misconduct will be underway,” a party leader told the Mail & Guardian.
The M&G previously reported that the NEC earlier this month instructed the ANC’s top six officials to deal with Magashule’s alleged “misconduct” after he held a series of media briefings challenging the NEC. This followed his suspension by the party’s NWC.
Several sources within the governing party with knowledge of the proceedings said the majority of the NEC members had endorsed a proposal that the officials institute proceedings against Magashule over his “dysfunctional” behaviour.
Magashule’s suspension letter — issued by deputy secretary general Jessie Duarte on 3 May — warned him against commenting on the step-aside process or his temporary removal from office.
One source said that during discussions about reports on the step-aside process, presented on Sunday evening, agreement was reached that Magashule’s behaviour had brought the party into disrepute.
In his closing remarks during a NEC meeting on Monday, Ramaphosa said the group had discussed the “so-called” letter of suspension written to him by Magashule and that the suspended secretary general had no authority or mandate from any structure of the movement.
“The NEC agreed that such conduct was completely unacceptable and a flagrant violation of the rules, norms and values of the ANC. The NEC furthermore instructed the officials to advise the secretary general to apologise publicly to ANC structures and members within a set timeframe. If he fails to do so, the ANC will institute disciplinary procedures in accordance with the ANC constitution,” Ramaphosa said.
Shortly after this instruction was given, Magashule filed papers in the high court in Johannesburg on an urgent basis, asking that it strike down the ANC’s step-aside rule as unlawful, along with his suspension as the secretary general of the party. He warned that the “crisis” in the ANC could shake the country.
He is also asking that the letter of suspension he served on Ramaphosa on May 5 be declared “valid and effective until lawfully nullified”.
Thirdly, he wants a declaration that the instruction issued by Ramaphosa and Duarte that he apologise for sending the letter to the president is declared unlawful and unenforceable.
Magashule wants the court to lift his suspension as secretary general and restore all his rights in the organisation that he held until 5 May, the date when the letter of suspension was sent to him by Duarte, though it was dated two days earlier.
The ANC confirmed that it would oppose his court challenge but failed to meet the deadline and has asked for an extension.
Magashule and the ANC have sought the country’s foremost legal minds to represent them in the challenge, which will inevitably change the scope of the party’s politics.
Magashule is represented by advocate Dali Mpofu, who was also part of a team of legal experts the party turned to for advice on the matter. Mpofu is a former ANC member.
Party insiders say the advocates will rely on the 2012 constitutional court judgment of Ramakatsa and others vs Magashule and the Free State PEC.
The case, which Mpofu ultimately won in the constitutional court, centred around how the ANC in the Free State had manipulated branch election outcomes.
The judgment was in favour of Mpho Ramakatsa and five others who had gone to the courts to oppose the legitimacy of the Free State provincial executive committee and called for it to be dissolved.
Sources in the Magashule camp say that Mpofu will use the same judgment in his challenge, which states that “political parties may not adopt constitutions which are inconsistent with the constitution. If they do, their constitution may be susceptible to a challenge of constitutional invalidity”.
Should Magashule lose, he faces possible expulsion, but should Ramaphosa and the ANC lose, the party will be forced to reexamine its resolution, which is intended to uproot corruption.