The 2017 ANC Nasrec conference resolution, rule 25.7, will become a key area of contention in suspended secretary general Ace Magashule’s court challenge against the party.
Magashule is expected to argue that the rule, which does not allow for an appeal, is unconstitutional and unlawful.
Rule 25.70 of the ANC constitution reads as follows:
“Where a public representative, office-bearer or member has been indicted to appear in a court of law on any charge, the secretary general or provincial secretary, acting on the authority of the NEC [national executive committee], the NWC [national working committee], the PEC [provincial executive committee] or the PWC [provincial working committee] … may suspend such public representative, elected office-bearer or member and impose terms and conditions to regulate their participation and conduct during the suspension.”
Magashule has previously argued that the rule has been conveniently taken apart and tailor-made to condemn him. He makes the argument that the Nasrec resolution indicates that those implicated and reported to have done wrongdoing should also face the step aside rule.
Meanwhile, two people in Magashule’s circle said that NEC members Dakota Legoete and Tony Yengeni — who have been by his side during his court appearances — have urged him not to continue with the court challenge against the ANC. The uMkhonto weSizwe Military Veterans’ Association (MKMVA) president, Kebby Maphatsoe, is also said to have cautioned Magashule against taking the party to court.
The insiders said Legoete and Maphatsoe had expressed this shortly after the application was made to the courts. Yengeni is said to have recently appealed to Magashule to reconsider his decision. The source said Yengeni advised Magashule to instead allow his allies, who are also facing the step-aside resolution, to pursue court action while he attempts to find a political solution.
Efforts to reach Yengeni and Legoete were unsuccessful.
But Maphatsoe said he had asked Magashule to find a political solution with the ANC before the secretary general had gone to court.
“That has been our call long before he was given a suspension letter. After he took this decision, we did not say anything. It was before he went to court; we said to him that he must exhaust all internal processes and let’s find an amicable solution, but that was before he went to court,” he said.
Magashule remains adamant that he will pursue the court action and fight until the end.
The court challenge will be heard virtually on Thursday and Friday by a full bench. Magashule’s supporters are expected to camp outside court but the MKMVA’s Carl Niehaus said it was unlikely that the secretary general would address the expected crowds.
Niehaus said he was talking to those organising supporters to limit the numbers to abide by the Covid-19 regulations.
Magashule was ordered to step aside in a letter by deputy secretary general Jessie Duarte on 3 May, which warned him against commenting on the step-aside process or his temporary removal from office.
A defiant Magashule refused the order, instead writing a letter stating that he would appeal the ANC’s decision and that Duarte has no power to suspend him. The letter went further, suspending president Cyril Ramaphosa.
He was then ordered to apologise but refused. Instead, Magashule applied to the South Gauteng high court to challenge the resolution.
In his application, Magashule asks that the court 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”.
He also 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.
In her papers opposing the challenge, Duarte rejected Magashule’s argument that he was the only person who held powers to suspend him, saying his interpretation of the ANC constitution was “clearly absurd”.
She similarly rejected Magashule’s claims he was targeted for being part of a faction.
She said the step-aside rule had been applied “across the board” and went on to list several 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 NWC in terms of the step-aside process and that he would be suspended if he did not comply within 30 days.
Filling an application as an intervening party supporting Magashule, Nkosentsha Shezi, who leads the KwaZulu-Natal campaign to defend former president Jacob Zuma, argues that the NEC did not abide by its own decision to consult branches before implementing the resolution. He adds that the ANC sought legal opinions from five experts, four of whom agreed the step-aside rule was unconstitutional.
“To my knowledge, the ANC did not subsequently take any steps, either to rectify the defects the defects identified or to gainsay the overwhelming legal opinion of invalidity,” Shezi argued.
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 NWC.
Magashule is represented by advocate Dali Mpofu, who was also part of a team of legal experts the party turned to for advice. Mpofu is a former ANC member.
The ANC has on its side advocate Wim Trengove, who represented Ramaphosa in the Economic Freedom Fighters’ application to unseal the CR17 bank records.
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, centred on 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 PEC and called for it to be dissolved.
Sources in the Magashule camp say 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.”