The unprecedented court battle between the ANC and suspended secretary general Ace Magashule will no longer be heard this week, but on 24 to 25 June, after it was assigned to a full bench.
The matter was set down for urgent hearing in the high court in Johannesburg on Tuesday, but it is understood the delay was brought, in part, by Magashule’s preference, expressed in his notice of motion, that the matter be heard by the full court.
Magashule served papers on the governing party; his deputy, Jessie Duarte; and President Cyril Ramaphosa a fortnight ago, asking the high court in Johannesburg to set aside his suspension as the party’s number two, but validate his own, unilateral attempt to suspend the president.
In his affidavit, he argued that the party’s step-aside guidelines, agreed by a resolution of its national executive committee (NEC) earlier this year, are in breach of the ANC’s constitution and not in line with that of the country.
Magashule contended that these create an unlawful “narrowing” of the resolutions of the party’s 54th conference, under which all members implicated in corrupt activities would be forced to vacate their positions. The NEC does not have the power to rewrite the rules as confirmed by conference; therefore, rule 27.5, which was invoked as the basis for his suspension, should be set aside.
On the other hand, Magashule added, his bid to suspend Ramaphosa was in line with the party’s original resolutions and should stand.
In February, charges of fraud, theft and contravention of the Public Finance Management Act were laid against Ramaphosa, on the basis of former Eskom chief executive Brian Molefe’s testimony before the Zondo commission, in which he accused the president of enabling the “capture” of Eskom for the sake of his business interests.
It is widely believed that Magashule’s own faction with the ANC was behind the laying of charges against the president, precisely to allow him to argue, when the time comes, that, should he be forced to step aside, so should Ramaphosa.
In his suspension letter sent to Ramaphosa on 5 May, Magashule refers to the fact that the president has been referred to “the serious offences directorate”, but also invokes the legal wrangling over unsealing the donor records of the CR17 campaign.
In his affidavit filed in response last week, the president noted that the crucial difference is that he has not been indicted, unlike Magashule, who is heading to trial on more than 70 charges relating to the Free State asbestos audit scandal.
“The rule only applies to members who have ‘been indicted to appear in a court of law on any charge’. I have not been so indicted,” Ramaphosa said.
There was, moreover, no suggestion from senior structures in the ANC that funding for his leadership campaign broke the law or went against the rules. Ramaphosa noted that, in terms of rule 27.5, the secretary general must act on the authority of the NEC or the national working committee.
Magashule’s move to suspend Ramaphosa lacked this standing. It is not only unlawful, he argued, but was done out of “vindictive spite”.
But, the legal points aside, the applicant and the respondents raised political arguments that set out the power struggle within the party.
Ramaphosa argued that the 54th conference, at which he was elected leader of the ANC, marked a “watershed moment” in the party’s efforts to confront criminal conduct within its ranks, and said his resolve to lead the party to organisational renewal was not factional.
In his far lengthier affidavit, Magashule instead described it as a blunt instrument to remove the president’s political opponents and facilitate his re-election at the next conference in 2022.
”The false and contrived anti-corruption crusade is being used as a ruse to purge those who are unwanted due to ideological and factional differences,” Magashule said.