Suspended ANC secretary general Ace Magashule claims that his intended suspension of the party’s president, Cyril Ramaphosa, was lawful.
This is contained in Magashule’s affidavit appealing the recent high court ruling, which dismissed his application to have his suspension set aside with costs.
Magashule argues that the court erred in holding that Ramaphosa’s suspension was not lawful without giving any explanation for that conclusion and in the absence of a counter application seeking such relief by the president.
“The court erred in accepting the theory that the outcome of the litigation regarding alleged violations of the executive ethics code by Ramaphosa as a head of state had anything whatsoever to do with his admitted use of money to influence ANC conference outcomes,” he argues.
Magashule argues that the high court judges consequentially erred in justifying the “patently unlawful” and “draconian conduct” of evicting him from the national executive committee (NEC) meeting, trying him in his absence, convicting him of violating the ANC constitution and passing a sentence of him having to apologise.
In May, shortly after Magashule sent a letter to suspend Ramaphosa, the NEC held a special meeting in which Magashule was called to apologise for his actions publicly. The NEC also refused him entry into the virtual meeting.
Magashule, in his appeal, argues that the court found in favour of this move by the ANC simply because the court, rightly or wrongly, found that the suspension of Ramaphosa was not lawful.
“The refusal of this relief cannot conceivably follow axiomatically,” he writes.
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 affected in terms of the ANC’s constitution, adding that it was precautionary and complied with the relevant law.
Magashule has also argued that the high court in Johannesburg erred in ignoring what he termed the “apparent fraudulent misrepresentations” related to the “false presentation” of different letters as the same letter by the party’s deputy secretary general, Jessie Duarte.
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.
Judge Jody Kollapen said the NEC gave Duarte the authority because Magashule could not suspend himself.
“There is still no evidence of why it was her who took it upon herself to suspend the SG [secretary general]. Paragraph  of the judgment does not make sense. It is not specified when the DSG [deputy secretary general] was so delegated by the relevant structures.”
Most of Magashule’s affidavit focuses on the constitutionality of the ANC’s rule 25.70, which was the precursor for his resignation.
He argues that the court’s finding that rule 25.70 is not unconstitutional in relation to the ANC constitution was an error.
“The court, having accepted that rule 25.70 forms part of the matrix of the chapter in the ANC constitution dealing with management of organisational discipline ought to have considered the rule in its proper context,” he said. “In any event, it is completely incorrect to conflate the issue of the objective constitutionality or otherwise of rule 25.70 per se with the facts of the present case and or the utilisation of the rule in respect of the so-called step-aside rule. These are different and unrelated intellectual exercises and concepts.”
In its ruling in July, the court said it was satisfied that Magashule’s suspension accorded with the principles of natural justice.
“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 Magashule purported to do in support of his decision to suspend Ramaphosa,” Kollapen said.
Magashule contends that the court erred in failing to answer whether and how all the jurisdictional requirements of rule 25.70 were met, failing which the suspension could not conceivably be lawful.
Magashule also takes a stab at the high court, accusing it of “serious allegations of bias”, which he says necessarily require confirmation or exoneration by another independent forum.
Magashule argues that the judgment is littered with countless examples of indications or pointers of actual or perceived bias on the part of the court, which to him point to a desire to produce or justify a predetermined outcome favouring the ANC.
He argues that the court is distorting or misrepresenting his arguments and attributed to him and his legal representative’s several assertions that were never made in the papers or written or oral arguments.
Magashule adds that the courts rejected his submissions merely because the ANC made different submissions with no reasoning by the court as to why it was prefered.
“If sustained, even to a partial extent, such allegations will obviously have a far-reaching impact on the democracy itself. If discredited, it will have an equally positive effect.
Either way, transparency is the essential medicine,” he writes in his affidavit.