/ 26 May 2021

Duarte: Magashule’s court challenge to his suspension is premature

Safrica Politics Anc Zuma
Friends like these: ANC secretary general Ace Magashule (right) has been called out by his former ally, deputy secretary general Jessie Duarte (left). (Gianluigi Guercia/AFP)

ANC secretary general Ace Magashule had gone to court to challenge his suspension before exhausting the party’s appeal processes, which he had attempted to distort to create the narrative that he was the victim of a factional purge in the party.

This was said in an affidavit submitted to the Johannesburg high court this week, by Magashule’s deputy, Jessie Duarte.

Duarte said Magashule had been placed on temporary suspension not for factional reasons but to “protect” the integrity of the governing party, which did not want leaders who faced criminal charges to “cling’’ to power and damage its image.

Magashule went to court last week to have his temporary suspension for being charged with corruption set aside, and claimed that he was the victim of a purge of supporters of cooperation governance minister Nkosazana Dlamini-Zuma

Dlamini-Zuma had unsuccessfully contested the ANC presidency in December 2017 on a “radical economic transformation” (RET) ticket, but lost to Cyril Ramaphosa. Magashule was the faction’s successful candidate for secretary general.

Magashule also challenged the legality of rule 25 of the ANC constitution, in terms of which the step-aside guidelines have been developed and has argued that Duarte did not have the powers to issue his letter of suspension on 3 May this year.

The matter is set to be heard on June 1.

In the affidavit, Duarte accused Magashule of misleading the court about internal ANC processes, saying he had not exhausted internal channels before seeking legal intervention.

Magashule had not appealed.

“It is clear that the applicant’s claim that he had exhausted the ANC process … was to justify his going to court,” she said. “This is an attempt by the applicant to justify approaching the court to set aside decisions, rules and resolutions that he has been a part of for many years,” she said.

“The applicant  has supported the implementation of the decisions, rules and resolutions that he now challenges. He does so because they no longer suit his personal position.” 

Duarte said Magashule’s claims he was targeted for being part of a faction led by Dlamini-Zuma were false.

Dlamini-Zuma, Duarte said, did not lead any ANC faction after the 2017 conference. Since the outcome of the Nasrec elective meeting, she had supported Ramaphosa and the rest of the newly-elected leadership and continued to do so in the party and in government.

Duarte said the party’s rule 25 made it “fundamentally inimical to the very foundation of the ANC constitution that a member of its senior leadership should refuse to submit to the discipline of the democratic decisions of the ANC and indeed attack its leadership in a manner that will sow division”.

Duarte said rule 25 was not a disciplinary or punitive regulation, but rather one aimed at protecting the integrity of the ANC. The party, she said, wanted people in positions of power to be “beyond doubt or reproach”.

“They should not  remain in office when indicted for criminal offences, which casts aspersion on their integrity and by implication that of the ANC,” she said. 

The party did not want people to “cling to power” while facing charges that brought the ANC into disrepute and was carrying out the suspensions in the best interests of the party.

Turning to the history of the step-aside regulations, Duarte said they were designed to convince people to “voluntarily” step aside because “it was the right thing to do”.

Duarte said the corruption charges against Magashule, stemming from the R255-million Free State asbestos scandal, were “very serious” and not frivolous, as he had suggested in his application.

“If they are true, the applicant would clearly be unfit to hold office in the ANC. For the time being, the charges negatively impact his integrity and by implication that of the ANC, in which he plays a senior leadership role,” Duarte said.

She also outlined the efforts the party leadership had taken to convince Magashule to abide by the national executive committee (NEC) decision, including a meeting at the home of ANC treasurer Paul Mashatile during April.

Magashule had informed the party officials that during his consultation with party elders, former president Jacob Zuma had backed his assertion that he was the victim of a factional purge. 

“The applicant informed us that former president Zuma had remarked on how the step-aside rule had been applied inconsistently, possibly along factional lines. We immediately corrected that applicant on the history and the genesis of this rule,” she said.

[related_posts_sc article_id=”415924″]

She said the step-aside rule had been applied “across the board”  and went on to list a number of leaders and members who had done so after being criminally charged — including herself — both in the current phase and earlier in the party’s history.

Duarte said Magashule was well aware of the processes initiated by the NEC and national working committee (NWC) in terms of the step-aside process and that he would be suspended if he did not comply within 30 days.

Duarte also dealt with the claims by Magashule that he was the only person who held powers to suspend him, saying that his interpretation of the ANC constitution was “clearly absurd”.

The NWC and NEC, she said, had mandated her to issue Magashule’s letter of suspension. 

Magashule’s  response in “suspending” Ramaphosa, about which he had “publicly trumpeted”,  was an act of “retaliation” which he had neither the mandate nor the constitutional powers to carry out.

Likewise, his challenge to the constitutionality of clause 25  was “incoherent”, while his claims that Duarte had been “spiteful” in issuing the suspension letter were “entirely absurd”.

Read Duarte’s answering affidavit below.

Jessie Duarte Answering Affidavit + Annexure 1 – 7 by Mail and Guardian on Scribd