/ 17 August 2021

ANC’s Danny Msiza ordered to step aside or face suspension

Kingpin: Limpopo ANC’s Danny Msiza

ANC deputy secretary general Jessie Duarte has ordered the ANC’s Limpopo secretary Soviet Lekganyane to implement the step-aside rule against the party’s provincial treasurer, Danny Msiza, “consistently” and without “deviation”. 

In a letter dated 16 August, Duarte states that the national executive committee (NEC) was unambiguous in its resolve that the step-aside resolution must be applied consistently in all provinces without any deviation. 

This comes as Msiza, the former VBS Mutual Bank chairperson, Calvin Tshifhiwa Matodzi, the former ANC youth leader in Limpopo Kabelo Matsepe and 11 others — bank executives, politicians, municipal officials and managers — were formally indicted by the National Prosecuting Authority (NPA) in March for allegedly looting nearly R2.3-billion from mostly poor people from the rural areas, especially those near the bank’s headquarters in Thohoyandou, in Limpopo.

They are facing 188 counts of racketeering, corruption, fraud, theft, and money laundering.

About 14 municipalities — in Limpopo, North West and Gauteng — lost nearly R1.6-billion after illegally investing with the bank.

Msiza, a heavyweight in Limpopo and allied to suspended secretary general Ace Magashule, has resisted calls for him to step aside. Msiza is said to be in control of the provincial executive committee (PEC) while Lekganyane — President Cyril Ramaphosa’s ally in the province — is struggling to stamp his authority. 

Duarte sent the letter after the PEC wrote to the ANC headquarters, Luthuli House, calling for clarity on whether Msiza should be asked to step aside. In her response Duarte said that members indicted to appear before the courts must step aside or face suspension. 

“We are of the view that this matter is abundantly clear and requires no further elucidation. It is not necessary or desirable for the national officials to comment on a case-by-case basis when the NEC has made a clear policy pronouncement and provided guidelines for implementing these policies. Accordingly, we urge the province to implement these decisions forthwith consistently’ and without deviation,” she wrote. 

In April, while the ANC was wrestling with the decision to suspend Magashule, Msiza and the PEC in Limpopo solicited a legal opinion regarding the office of the secretary general that names be submitted to officials affected by the resolution. 

The legal opinion set out that during the compilation of the names of the affected members, the PEC appears to have been confronted with a problem regarding Msiza, who has “raised legitimate concerns on the interpretation of the NEC resolution in so far as it pertains to his peculiar circumstances”.

The opinion concludes that the PEC should consider not supporting or taking a decision to subject Msiza to the consequences of the step-aside resolution. It concluded that any act to the contrary may breach Msiza’s right to a fair and just administrative process.

Although the legal opinion agrees with the step-aside resolution on its merits and substance, advocate Moses Mphaga, who drafted the opinion, says the implementation of the resolution may be open to challenge, in particular so far as it has adverse effects on the affected members’ constitutional rights. 

“Equally, in applying the aforesaid principles in respect of the delay in the implementation of the conference step-aside resolution, particularly where individual member’s constitutional rights may be adversely affected, is a material fact or consideration to be taken before such decisions are implemented,” Mphaga writes.

“It is also apparent that due to the delay and inconsistency in the implementation of the resolutions of the conference, some members against whom the integrity commission has recommended step aside, like Msiza and [Florence] Radzilani, have complied and thereafter [been] reinstated by the NEC.

“The current step-aside resolution seeks to revisit the decision to reinstate such members who may have stepped aside based on allegations of corruption and now have subsequently been formally charged.” 

Mphaga recommends that the PEC should at this stage not submit the name of Msiza “subject to clarification of the aforesaid legal implications by the NEC”.

Mphaga notes that the principle of double jeopardy — although embedded in a criminal sense in section 35 of the Constitution — is relevant in Msiza’s case, because he “has been subjected to an inquiry on substantially similar facts as in the current criminal case and subsequently reinstated”.

Msiza had initially volunteered to step aside from his job in the ANC in 2018 after a forensic report by advocate Terry Motau and Werksmans Attorneys placed him as a commission agent in Limpopo. 

He was later reinstated by the NEC after he won a court case to have some findings about him in the investigation set aside on procedural grounds.