Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
24 November 2020

Ace Magashule and the limits of the ANC NEC “step aside” decision

The decision by the National Executive Committee (NEC) of the African National Congress (ANC) ordering members charged with corruption to “step aside” from all government and party positions, has not been implemented. The party says this is because it has obtained legal advice that it does not have the power to force members to relinquish party positions. While there is indeed some doubt whether the ANC NEC has this power, the NEC does (on paper at least) have extensive powers at its disposal to enforce its decisions and root out corrupt individuals.

After it came to light that Ace Magashule, the Secretary General of the ANC, would be charged with corruption, fraud and money laundering, speculation was rife that he might be forced to “step aside” in accordance with the NEC’s earlier decision. Magashule dismissed this idea after his first court appearance, claiming that he would only step aside when branches at a special conference demanded that he do so.

At first, the NEC decision that those charged with corruption should “step aside from their positions or responsibilities” was widely interpreted as an order that those in the party charged with corruption should resign from their positions. But the statement was ambiguous, and “stepping aside” can also refer to the need temporarily to refrain from exercising the powers attached to one’s position, while retaining one’s position and membership of the party. The latter meaning of “stepping aside” raises legal problems as there are no legal mechanisms to facilitate such a temporary abdication of responsibilities.

Here it is important to note that the legal position of those who hold positions in the ANC differs from the position of those who serve in government (at any level), and those who serve as elected representatives in the various legislatures and in municipal councils.

The position of ANC office holders like Magashule is governed by the ANC Constitution, and any action taken against Magashule or other office bearers must be authorised by that Constitution. This was confirmed by the Constitutional Court in Ramakatsa v Magashule, ironically a case in which the Constitutional Court declared the provincial elective conference of 2012 ANC Free State province (presided over by Ace Magashule) unlawful and invalid because various irregularities had occurred in the run-up to the conference.

The ANC Constitution does not provide for ANC members to “step aside”. It does empower the NEC to “take all steps necessary or warranted for the due fulfilment of the aims and objectives of the ANC and the due performance of its duties”. While it could be argued that these provisions empower the NEC to issue binding instructions to office bearers to “step aside”, it is far from clear-cut, as the NEC is required to exercise these powers in accordance with the ANC Constitution and may not “rewrite” the Constitution through the adoption of new mechanisms to discipline party members and office bearers.

Similarly, there is no provision in the South African Constitution or ordinary legislation providing for a member of the national or provincial legislature or municipal council to temporarily “step aside” from their duties. A political party can instruct an MP, member of the provincial legislature or municipal council to resign, but as I have previously explained, such an individual is not legally obliged to obey an instruction from their party to resign as an elected representative. (Such a refusal may, however, have adverse consequences for the individual, as I explain in more detail below.)

Of course, it would be perfectly legal for the ANC to remove one of its MPs as chair of a portfolio committee in the National Assembly (NA). Political parties select their representatives to serve on each portfolio committee and can remove a member from a committee at any time. Nothing therefore prevents the ANC from removing fraud and corruption accused, Bongani Bongo, as chair of the Home Affairs portfolio committee in the NA. The fact that Bongo has not been removed tells its own story. The ANC can also engineer the removal of executive Mayors implicated in corruption by instructing council members to support a vote of no confidence in the ANC Mayor.

The South African Constitution or ordinary legislation does not provide for a Minister, MEC or mayoral committee member to temporarily “step aside”. However, the President, Premiers or executive Mayors are empowered to remove any Minister, MEC or mayoral committee member from office. This is because these are political appointees who serve at the pleasure of the head of the executive, and do not enjoy the same labour law protection enjoyed by ordinary employees. (At best, it could be argued that their removal must be rational, which would require no more than that they are not removed for a corrupt or other ulterior purpose.)

This does not mean the ANC is powerless to act against its public representatives and office bearers who are charged with corruption or other criminal offences and refuse to resign from their positions.

A political party is a voluntary association, and members who join a political party agrees to abide by its Constitution and its other rules and regulations. Its elected office bearers and public representatives are therefore not employees in the traditional sense. They are bound by an onerous disciplinary code aimed at maintaining party discipline and protecting the reputation of the organisation. They are entitled to procedurally fair treatment, in accordance with pre-approved rules contained in the party’s Constitution. But unless they launch a successful challenge to the constitutionality of specific disciplinary rules in the party’s Constitution, they are bound by its provisions.

As is the case with any political party in South Africa, the ANC Constitution contains various provisions empowering the organisation to enforce party discipline and to ensure that its public representatives and office bearers obey directives issued by the NEC. If the ANC had the political will to do so, it could use these provisions to suspend or even expel members who have brough the party into disrepute through their dubious association with corruption. (However, a political party riven by factional divisions and saddled with an indecisive leader not fully in control of his or her party, is unlikely to take such drastic action against its leaders implicated in corruption.)

The NEC and several other ANC structures are empowered to “institute disciplinary proceedings against any member, office bearer or public representative in respect of any act of misconduct” (section 25.9). Section 25.17 of the ANC Constitution contains an extraordinary long list of disciplinary offences, including various offences aimed at instilling party discipline and ensuring enforcement of NEC directives.

Thus an ANC member of a legislative body who refuses to resign his or her seat despite being instructed to do so in terms of their “contract of deployment” could face disciplinary charges for “failing, refusing or neglecting to execute or comply with any ANC Policy, Standing Order, Rule, Regulation or Resolution adopted or made in terms of this Constitution”.

An ANC member, office bearer or public representative who engages in any unethical or immoral conduct or other actions that may bring or has the potential to bring the ANC into disrepute can also be disciplined. Note that being charged with a criminal offence or being convicted of a crime is not required before disciplinary action can be taken, so the “innocent until proven guilty” defence (unwarranted as it is in this context) is not applicable.

Political parties include such provisions in their Constitutions because a party can suffer catastrophic damage to its reputation when one of its leaders does something unethical or immoral, or is caught engaging in criminal conduct. Some of the damage would occur long before the party leader is charged or convicted of any crime, which was ironically the reason given by former President Thabo Mbeki for firing Jacob Zuma as Deputy President.

This point may appear to be obvious, but it is not universally accepted in South Africa, so an example might help to clarify matters. Say the President of the ANC is caught on video taking a bribe from a CIA agent or a member of the “Stellenbosch Mafia”, or is caught on video assaulting and killing a sex worker, or is arrested for sexually abusing several underaged girls, the ANC will suffer immense reputational damage, long before (and regardless of whether) the President is charged or convicted of any of these crimes. A political party who cares about the damage this could do to its electoral support will take swift action against such a leader. (I leave it to the reader to decide whether the ANC under present conditions would do so.)

In terms of section 25.21 of the ANC Constitution, a member found guilty of any disciplinary offence may be suspended or expelled from the party and, in the case of an office bearer like Ace Magashule, may be removed or suspended from office. A person may also be temporarily be suspended before commencement of the disciplinary hearing. (It is important to note that a member of the legislature who is expelled from their political party automatically lose their seat in the legislature.)

It is therefore clear that the NEC has extensive powers to deal with party members charged with (or implicated in) corruption, notwithstanding the legal advice regarding the illegality of the “stepping aside” order. It is also clear that (at present, at least) the NEC is politically unable and/or unwilling to use these powers against powerful party leaders.

PS: In the original version of this article I did not refer to section 25.70 of the ANC Constitution, which further empowers the NEC to act. The section 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, the PEC or the PWC, if satisfied that the temporary suspension of such public representative, office-bearer or member would be in the best interest of the Organisation, may suspend such public representative, elected office-bearer or member and impose terms and conditions to regulate their participation and conduct during the suspension.”

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