Mpofu protests that court has prejudged issues in Magashule case

The Johannesburg high court on Thursday dismissed three applications by ANC members to intervene in support of the arguments advanced by the party’s suspended secretary general, Ace Magashule, in his legal battle to be reinstated.

In doing so, Judge Jody Kollapen recognised the validity of an ANC resolution of January 2018 that delegates the powers located with the national executive committee (NEC) to the secretary general and the deputy secretary general, and also leant in favour of a wide reading of the latter’s powers.

Part of the battle between Magashule and the ANC rests on whether deputy secretary general Jessie Duarte had the power, in terms of section 16.9 of the party’s constitution, to suspend him on May 5.

The 2018 resolution gave delegation to Magashule and Duarte by name, and put paid to an argument by those asking permission to intervene that she lacked the authority to oppose his application on behalf of the ruling party.

“It is a general delegation, it is a blanket delegation in every sense of the word,” Kollapen said.

He then turned to the next argument by the applicant, Mutumza Mawere, as to whether the delegation is appropriate. In passing, the judge referenced a court ruling that forms one of the cornerstones of the main application by Magashule.

“In this regard I think it is important to point out that our courts have recognised that a voluntary organisation is largely regulated by the agreement entered into between its members, which is reflected in its constitution.

“That being the case, the internal affairs, to some extent, of how a voluntary organisation manages its affairs is largely left to it,” Kollapen continued.

“If the ANC, for the reasons given in its resolution of January 2018, placed on the record that it was inappropriate, inconvenient and perhaps even impractical for the NEC to meet on every occasion to make a decision on litigation and if it elected to delegate those powers to the secretary general and the deputy secretary general, then that is a decision that must be respected.”

Nothing in law says that such a decision is impermissible or means it falls outside the authority of the NEC, he added.

The court then turned to Mawere’s challenge of section 16.9 of the ANC constitution.

Duarte has argued in court papers that the clause gave her the power to carry out the same functions as the secretary general where necessary. Magashule countered in reply that this was nonsensical. 

“The DSG [deputy secretary general] cannot suspend a person more senior than her, unless she was specifically authorised to do so, which she was not,” he argued in court papers.

But Kollapen said the court was obliged to interpret 16.9 “in a way that is efficient and businesslike”.

To do otherwise, he said, would be rendered dysfunctional in the absence of the secretary general.

“The language used in section 16.9 is clear. It says the deputy secretary general shall assist deputise when necessary.”

If this is read together with the 2018 resolution, the delegation was made to both the secretary general and his or her deputy, and in the absence of the former, nothing prevented the deputy from carrying out the functions entrusted by top structures of the party.

The ANC argues that as Magashule would clearly be conflicted in effecting his own suspension, this power automatically fell to Duarte.

Advocate Dali Mpofu, for Magashule, raised his concern that Kollapen’s ruling on the applications to intervene suggested that the court had already reached a conclusion on parts of the main application.

“That gives an impression that those issues have been prejudged before they have been argued in the main application,” Mpofu said.

“It is going to make our life difficult to try and unconvince a court rather than one that we think is coming with a clean mind on those issues.”

In his papers Magashule relies on the 2012 constitutional court ruling in Ramakatsa v Magashule, a matter that dates back to his days as premier of the Free State.

The judgment held that a court can declare a decision of a political party invalid if it runs counter to the constitution of the party, or that of the country. But, it added, as Kollapen noted, the caution that courts would not readily interfere, because political parties are voluntary organisations that make their own rules.

Magashule is also arguing that the ANC step-aside guidelines, agreed by a resolution of its NEC earlier this year, are in breach of the ANC’s constitution and that of the country. 

He claims that the NEC lacked 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.

In his view the rule is a “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. It was tailored to selectively target him because he serves a threat to President Cyril Ramaphosa’s likely bid for re-election as ANC leader next year.

He invokes the 2017 resolutions, which says all accused of corruption must stand aside, to justify his own bid to suspend Ramaphosa. Magashule faces trial in the Free State asbestos scandal, whereas Ramaphosa has not been indicted of any crime.

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