Advocate Dali Mpofu is representing suspended ANC secretary general, Ace Magashule.
No amount of noble intentions could render the ANC’s step-aside guidelines lawful because the national executive committee (NEC) lacked the power to rewrite the resolutions of the party’s 54th conference, counsel for suspended secretary-general Ace Magashule argued in the Johannesburg high court on Thursday.
“Motive as we know, is not all decisive in these matters, but it is relevant,” Advocate Dali Mpofu said.
“So if the NEC amended the Nasrec resolution for the most benevolent reasons, because they want to save the world, it would still be wrong to do that because it is a matter of law that the NEC does not possess the powers to amend the decision of the national conference.”
Mpofu said if this were accepted as trite, the next step was to consider whether the 2020 guidelines did in fact amount to an amendment.
He proceeded to argue that this is precisely what happened because the step-aside rule now only applied to officials charged with serious offences whereas the conference had cast the net wider to include those who used money to buy power within the party and were under investigation by the public protector.
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“In which world is that not a fundamental amendment,” he said, before challenging the argument for the ruling party’s lawyers that the guidelines simply elucidated the resolution adopted in 2017.
“It is as if the constitution said you shall have oranges, apples and peaches, and then the legislator in Cape Town says you know we just want to develop this constitutional provision and it just requires oranges. Forget about the apples and the peaches.
“Anybody would laugh you out of court.”
It was the last of 12 arguments Mpofu raised as to why Magashule’s suspension in May, after he failed to heed a 30-day deadline for officials facing serious charges to step aside, should be overturned by the court.
And it went to the heart of Magashule’s theory — set out at length in his court papers — that the resolution was given narrow application in the step-aside rule to spare Ramaphosa and target only his foes within the party.
“Let’s look at it coldly as lawyers and say can a lower body re-engineer, repurpose, alter, vary and amend the constitution of a higher body, the answer is a big no and that is what happened here,” Mpofu said.
Turning to motive, he accused Ramaphosa of proclaiming that he wanted to root out corruption while ensuring that the parts of the resolution that would trigger his own suspension for raising funds to contest the ANC leadership were excised.
“The resolution includes a category of those who used money to buy a conference…. It is gone, it has disappeared,” he said.
“Let’s make sure that Nasrec CR17 is no longer a stepping down offence, so chop out the national conference resolution. It was done for factional purposes.
“When the conference did this it wanted to root out corruption in all its ugly manifestations but some people somewhere on Zoom decided that no, corruption must be rooted out in some manifestations that affect only a particular faction. It is wrong.”
Magashule has asked the court not only to overturn his suspension, but to uphold his own unilateral attempt to use his powers as secretary-general to suspend Ramaphosa, hours after his deputy, Jessie Duarte, served him with a letter of suspension.
Magashule contends that this should stand because, unlike his own suspension, it was faithful to the conference resolution.
Much of Thursday’s argument revolved around whether Duarte had proper delegation to exercise a power vested in the secretary-general.
She argues that section 16.9 of the ANC’s constitution empowers her to carry out the same functions as her immediate superior where necessary, but Mpofu argued that the power did not cede to her automatically, even if in this case Magashule was clearly conflicted.
“It does not fall on her to write a letter to suspend her boss.”
He objected earlier in the day when, in ruling on the application of ANC member Mutumza Mawere to intervene in the case, Judge Judy Kollapen held that the court was obliged to interpret 16.9 “in a way that is efficient and businesslike”.
Kollapen said any other reading would render the party 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.”
Mpofu said one might be forgiven for thinking that the court had prejudged the issue.
“That gives an impression that those issues have been prejudged before they have been argued in the main application.
“It is going to make our life difficult to try and unconvince [sic] a court rather than one that we think is coming with a clean mind on those issues.”
Magashule’s main argument is that rule 25.7 of the ANC constitution, invoked to effect his suspension, is unconstitutional because it goes against, inter alia, the presumption of innocence.
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He relies in part on the 2012 constitutional court ruling in Ramakatsa v Magashule, a matter that dates back to his days as premier of the Free State, where the court held that a decision of a political party can be ruled invalid if it violates the constitution of the party, or of the country.
Kollapen noted that the judgment added the caution that courts should not readily interfere as political parties are voluntary organisations that make their own rules.
Mpofu sought to counter this by arguing that membership of a political party could not be compared to that of, for instance, a football club because the constitution affords special, explicit protection to an individual’s right to belong to the political party of his choice.
The hearing continues on Friday.