The Johannesburg high court on Monday denied ousted ANC secretary general Ace Magashule leave to appeal its 9 July 9 ruling that upheld his suspension from the number-two position in the governing party.
The court rejected every ground of argument for leave to appeal advanced by Magashule, including his contention that a full bench was biased when it found that his suspension was lawful, but his same-day bid to suspend Cyril Ramaphosa as president of the ANC was not.
“There were no political imperatives which influenced our decision, nor did we prejudge the issues before us,” the court said.
“The fact that the applicant may disagree with the factual findings of the court, even if such disagreements are copious, does not lead to the ineluctable conclusion that the court was biased.”
Magashule approached the high court shortly after he was suspended on 5 May, to challenge the constitutional validity of the party’s rule 25.70 pertaining to officials being compelled to step aside from their positions.
He advanced four more main arguments: 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 delegated authority to suspend him in terms of section 16.9 of the party’s constitution; and that the principle of natural justice was not applied.
But the court said it was satisfied that the ANC’s constitution was consistent with that of the country and that the decision to suspend Magashule was effected in terms of the party document, adding that it was precautionary and complied with the relevant law.
Duarte acted on the authority of the national executive committee in suspending Magashule because — as his counsel conceded in court — he could not suspend himself.
In his application for leave to appeal, Magashule argued that this part of the “judgment does not make sense”, because it failed to show when Duarte was mandated by party structures to proceed against him.
He contended that the court erred in failing to answer whether and how all the jurisdictional requirements of rule 25.70 — the party’s fraught article on forcing corruption-accused officials to relinquish their positions — were met. In the absence of this, he argued, the suspension could not conceivably be lawful.
The bench distorted his arguments, he added, and finally rejected these merely because the ANC presented different arguments. It did not give any clear reasoning as to why it preferred the party’s submission and this smacked of prejudging the matter.
The suggestion of bias was so serious, Magashule said, that it required confirmation or exoneration by another independent forum.
But judges Jody Kollapen, Sharise Weiner and Edwin Molahlehi said there was no reasonable prospect that another court would take a different view.
“In our view, none of the decisions that this court made on the various factual issues which we decided on, were so unreasonable that a perception of, or actual bias can be shown.”
Magashule was suspended after he was charged with corruption, fraud, theft and money-laundering for his alleged role in the Free State asbestos audit scandal. He maintains he is innocent, and his court challenge of his suspension read like a battle for the soul of the riven ANC, with Magashule claiming Ramaphosa was using the charges and the step-aside resolution to ease his own road to re-election as party leader in 2022.
Although this court decision technically paves the way for the party to proceed to expel Magashule, the ANC appears to be holding fire on the issue for now.