Allies warn Ace against fightback
Magashule is expected to argue that the stepaside rule 25.7 is unconstitutional and unlawful
Allies of suspended ANC secretary general Ace Magashule tried to persuade him against challenging the party in court, insiders say. Two people in Magashule’s circle said national executive committee (NEC) members Dakota Legoete and Tony Yengeni — who have been by his side during his court appearances — have urged him not to continue with the court challenge against the ANC’S decision that he step aside.
The Umkhonto wesizwe Military Veterans’ Association (MKMVA) president, Kebby Maphatsoe, is also said to have cautioned Magashule against taking the party to court.
The insiders said Legoete and Maphatsoe had expressed their sentiments shortly after the application was made to the courts. Yengeni is said to have recently appealed to Magashule to reconsider his decision. The sources said Yengeni advised Magashule to instead allow his allies, who are also facing the step-aside resolution, to pursue court action while he attempts to find a political solution.
When asked if this was in fact true
Legoete simply said no and efforts to reach Yengeni were unsuccessful. Maphatsoe said the MKMVA had asked Magashule to find a political solution before he had taken a decision to go to court.
The 2017 Nasrec conference resolution 25.7 will become a key area of contention in Magashule’s case. He is expected to argue that the rule, which does not allow for an appeal, is unconstitutional and unlawful.
Rule 25.7 of the ANC constitution reads as follows:
“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 [national executive committee], 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 has previously argued that the rule has been conveniently taken apart and tailor-made to condemn him. He argues that the Nasrec resolution indicates that those implicated and reported to have done wrongdoing should also step aside.
Magashule was ordered to step aside in a letter by deputy secretary general Jessie Duarte on 3 May, which warned him against commenting on the step-aside process or his temporary removal from office.
Instead Magashule wrote a letter stating that he would appeal the ANC’S decision and that Duarte had no power to suspend him. His letter went further, suspending president Cyril Ramaphosa. He was then ordered to apologise but refused to do so. Magashule then turned to the high court.
In his application, he asks that the court
strike down the ANC’S step-aside rule as unlawful, along with his suspension as secretary general.
He also asked that the letter of suspension he served on Ramaphosa be declared “valid and effective until lawfully nullified”. He wants a declaration that the instruction issued by Ramaphosa and Duarte that he apologise for sending the letter to the president is declared unlawful and unenforceable. And he wants the court to lift his suspension as secretary general and restore all his rights.
In her papers opposing the challenge, Duarte rejected Magashule’s argument that he was the only person who had the power to suspend himself, saying his interpretation of the ANC constitution was “clearly absurd”. She rejected Magashule’s claims he was targeted for being part of a faction. She said the step-aside rule had been applied “across the board” and listed leaders and members who had done so after being criminally charged — including herself — both in the current phase and earlier in the party’s history.
Filing an application as an intervening party in support of Magashule, Nkosentsha Shezi, who leads the Kwazulu-natal campaign to defend former president Jacob Zuma, argues that the NEC did not abide by its own decision to consult branches before implementing the resolution. He adds that the
ANC sought legal opinions from five experts, four of whom agreed the step-aside rule was unconstitutional.
In his affidavit filed in response last week, Ramaphosa noted that the crucial difference was that he had not been indicted, unlike Magashule, who is heading to trial on more than 70 charges relating to the Free State asbestos scandal.
Magashule and the ANC have sought the country’s foremost legal minds to represent them.
Magashule is represented by advocate Dali Mpofu, who was also part of the team of legal experts the party turned to for advice.
The ANC has on its side advocate Wim Trengove, who has been representing Ramaphosa in the Economic Freedom Fighters’ application to unseal the CR17 bank records.
Party insiders say the advocates will rely on the 2012 Constitutional Court judgment of Ramakatsa and others vs Magashule and the Free State PEC.
The case, which Mpofu won in the Constitutional Court, centred on how the ANC in the Free State had manipulated branch election outcomes.
The judgment was in favour of Mpho Ramakatsa and five others who had gone to the courts to oppose the legitimacy of the Free State provincial executive committee and called for it to be dissolved.