/ 25 June 2021

There was nothing unconstitutional about Ace’s suspension, Trengove argues

Magashule said that the ruling party would not be likely to vote with the opposition

Suspended ANC secretary general Ace Magashule’s court bid to be reinstated stumbles on the contradiction that he tries to nullify the party’s rule 25.7, and with it his suspension, but relies on it to demand that his own bid to suspend President Cyril Ramaphosa is valid, the Johannesburg high court heard on Friday.

Advocate Wim Trengove, for President Cyril Ramaphosa and the ruling party, said Magashule, in his founding affidavit at least, clung “to both contentions although they are incompatible”.

“This is an important chapter because they ask for the rule to be declared invalid, but it is also the rule under which Mr Magashule acted when he suspended the president … from time to time that there are extraordinary contradictions in Mr Magashule’s own case.”

Trengove told the court that realising that this is untenable, Magashule’s counsel on Friday morning tried to change tack.

“We heard a few minutes ago that Mr Magashule apparently suspended the president under rule 16.6.1, well that’s the first time we heard of it. It is another illustration of how Mr Magashule, every time he runs into problems, shifts grounds.

“He’s not allowed to do so,” Trengove said, because the applicant was bound to the grounds set out in his founding affidavit.

He said Magashule’s attack on the constitutionality of rule 25.7 was pleaded in very cryptic terms.

The rule provides for the temporary suspension of an office bearer of the ANC who faces indictment to appear in court on charges where it is deemed that this will be in the best interest of the party.

“There was nothing of all this fancy arguments that my learned friend Mr [Dali] Mpofu raised, the pleading was that the clause was out of sync with the provisions of the constitution, and the ANC constitution more particularly, as it violates both the rules of natural justice and, more importantly, the presumption of innocence,” Trengove said, summarising the other side’s argument.

Here, he said, the Jockey Club cases were instructive because they determined that a voluntary association’s constitution is a contract with its members, and where it confers disciplinary powers on the entity, an implication arises that it exercises it along the principles of natural justice.

In the case of rule 25.7, that implication does arise, and therefore one could not condemn the rule for being in violation of the principles of natural justice.

Mpofu argued that the rule infringes on the freedom conferred on everybody by section 19 of the constitution to belong to the political party of their choice. It meant, he said, that the court could not view the ANC, or any other political party, as an ordinary voluntary association. 

But Trengove said Mpofu had been forced to concede that his argument led to the absurdity that no political party could suspend or expel a member.

“Section 19 has a perfectly sensible interpretation. Every person has a right to join a political party and to participate in its activities and nobody may preclude any citizen from doing so. But when they do participate, they participate in accordance with the rules of the party.

“Section 19 of the constitution does not mean that a political party may never expel a member, does not mean that a political party may never suspend a member,” he argued.

“My learned friend ultimately had to accept that what it means is no more than to require of a political party, if it infringes on the freedom of a member to participate in its activities, that it must do so in accordance with the principles of natural justice.

He then turned to Mpofu’s reliance on Ramakatsa v Magashule, a case that dates from Magashule’s time 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. 

 “And that really is at the heart of Ramakatsa where the constitutional court said the following section 19 of the constitution does not spell out how members of a political party should exercise the right to participate in the activities of their party for the good reason that this is left to political parties themselves to regulate.”

Mpofu on Thursday spent much time arguing that Magashule’s suspension was a factional purge of Ramaphosa’s foes in the party, but further that rule 25.7 was an unacceptable narrowing of the resolutions of the party’s 2017 Nasrec conference.

The resolutions took aim at corruption in the party’s ranks and in doing so also set in its sights on those accused of trying to buy power and those under investigation by the public protector. Therefore, he said, Ramaphosa fully qualified because he had donations of some R300-million to further his campaign to become the leader of the ANC.

Trengove countered that, even if one accepted that the rule did not include all the categories of accusations or allegations envisioned in the resolution, it did not render it remotely unlawful. 

As matters stood, Magashule has been indicted on serious charges of corruption and fraud flowing from the Free State asbestos scandal. Ramaphosa was not before a criminal court for campaign donations, and the high court has found that the public protector’s investigation into these were unlawful.

In his reply, Mpofu bluntly asserted that this involved “vote-buying or whatever”, and countered that Trengove was wrong to suggest that what happened to Magashule was not a disciplinary process.

He said therefore it was critical that Magashule was not afforded a hearing, and Trengove’s submission that the principle of audi alteram partem was respected because he had an audience with the party’s integrity commission was spurious.

It flew against his Latin teaching, he said, because “audi” meant not merely speaking but being heard, and here the relevant audience was not the integrity committee but the party’s national executive committee.

“What is audi? For that Mr Trengrove says all that is required is an opportunity to speak. Well, I studied, audi alter partem is a right to be heard … As if you can just speak in your own bedroom,” he argued.

“No, it is the right to speak to the decision-maker. So who is the decision-maker for 25.7? It is the secretary general, the other decision-maker is the NWC [the national working committee],” he said.

Mpofu conceded that Magashule, in terms of rule 16.9 of the party’s constitution, was not the only authority who could suspend himself, but that the question arose as to who was able to do so, and he argued that the power did not naturally cede to his deputy, Jessie Duarte, who served a letter of suspension on him in May.

Judgment was reserved.