/ 9 July 2021

Court rules that the ANC step-aside rule is in line with the Constitution as it dismisses Magashule’s application

South African Politician Ace Magashule Visits The Family Of Mama Rebecca Kotane In Soweto
Winding his neck in: Ace Magashule. (Photo by Sharon Seretlo/Gallo Images via Getty Images)

The high court on Friday delivered a blow to ANC secretary general Ace Magashule, when it dismissed, with costs, his challenge to his suspension from his position in the party.

The ANC is holding its national executive committee (NEC) meeting this weekend and the court decision may be the final nail on Magashule’s coffin. 

The Mail & Guardian previously wrote that a report by the party’s chief presenter on whether Magashule should be hauled before its disciplinary committee for misconduct, which could result in his expulsion, has been completed. 

Party insiders said the party was waiting on the court judgment before it presented Magashule with more charges, including misconduct. The case against Magashule was further boosted on Sunday when he encouraged a rebellion by supporters of former president Jacob Zuma at branch level.

Magashule has previously said he would appeal the judgment should his high court challenge fail.

In a blistering judgment delivered by the full bench, the court said it was satisfied that the ANC’s constitution is consistent with that of the country and that the decision to suspend Magashule was effected in terms of the the ANC’s constitution, adding that it was precautionary in nature and complied with the relevant law.

Reading the ruling, Judge Jody Kollapen broke Magashule’s application into five categories: that the party’s rule 25.70 is unconstitutional and not in line with the constitution of the ANC and the country; that his suspension was in violation of section 9, and section 10 of the Bill of Rights; that his counter suspension of Ramaphosa remained valid until set aside; that deputy secretary general Jessie Duarte had no authority to suspend him; and that the principle of natural justice was not applied. 

Kollapen said: “The presumption of innocence is a specified constitutional right that rises only in the context of an accused’s right to a fair trial … Rule 25.70 does not relate in any manner whatsoever to a trial and therefore the attempt to apply in the context of rule 25.70 is misplaced and not sustainable.”

Rule 25.70 states: “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, 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 had asserted that the NEC lacked the power to rewrite the rules as confirmed by the ANC’s 54th conference in December 2017 and therefore, rule 27.50, which was invoked as the basis for his suspension, should be set aside.

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.

Magashule had said that the rule was a “narrowing” of the resolutions of the party’s 54th conference, under which all members implicated in corrupt activities had to vacate their positions. He said it was tailored to selectively target him because he was a threat to Ramaphosa’s likely bid for re-election as ANC leader next year.

Magashule had  invoked a 2017 resolution, 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.

The judges also disagreed with Magashule’s contention that rule 27.50 was in violation of section 9 and section 10 of the Bill of Rights, when he argued that his suspension resulted in the violation of his right to equality and human dignity. 

“While it may well be argued that on a level of principle, an unlawful suspension may have a potential to impact on the dignity of an individual, if the suspension accords with the ANC’s constitution and the jurisdictional requirements set out, then it can hardly be contended that it stands to be set aside because its effect infringes upon or impares the dignity of Mr Magashule,” Kollapen said.

“If this was the case, invoking the right to dignity would stand as a bar to the giving effect of any unlawful conduct and that certainly is not state of our law.”

Kollapen said there was no merit in the contention that there was a narrowing down or repurposing of the ANC conference resolution by the NEC and the challenge to the step-aside rule must also fail. 

The court also found that the principles of natural justice were observed prior to Magashule’s suspension, saying he was offered a hearing before his suspension. 

“He participated in all the processes relating to the development, formulation and adoption of the resolutions at the conference in this matter including the resolutions of the NEC on the guidelines and the implementation of the step aside principle,” said Kollapen.

“Furthermore, he was afforded ample opportunity at various levels of the processes leading to his suspension to make representation as to why he should not be suspended.”

Part of the battle between Magashule and the ANC rested on whether Duarte had the power, in terms of section 16.9 of the party’s constitution, to suspend him on May 5. Kollapen said Duarte was given the authority by the NEC because Magashule could not suspend himself. 

The courts also found no merit in Magashule’s suspension of ANC president Ramaphosa without common cause.

“It is clear and it is common cause on this matter that Mr Ramaphosa has not been charged of any offence and therefore simple logic would conclude that it is not open to the ANC or anybody to use rule 25.70 were the individual has not been charged,” Kollapen said.

The court said it was satisfied that Magashule’s suspension accorded with the principles of natural justice in the event that characterising his suspension as precautionary may have been an error.

“In finding that there was no basis to confirm the purported suspension of Ramaphosa, we pointed out that the mandatory requirements to effect such a suspension in terms of rule 25.70 among them that he be indicted were absent and that therefore there could be no basis to activate rule 25.70 as Mr Magashule purported to do in support of his decision to suspend Ramaphosa,” Kollapen said.

Magashule’s application was dismissed with the costs of three counsel.  

Magashule had his first defeat in court in June, when the high court dismissed three applications by ANC members to intervene in his support.

In that case the full bench of judges said they recognised the validity of an ANC January 2018 resolution that delegates the powers located with the NEC to the secretary general and the deputy secretary general, and also leant in favour of a wide reading of the latter’s powers.

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

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

“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 argued.