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
18 May 2021

The Ace Magashule court challenge: Mostly legal nonsense (and some false statements), but one argument may worry the ANC

Late last week, Ace Magashule, the suspended Secretary General of the ANC, approached the Gauteng High Court, asking it to nullify his suspension, and to declare the rule in terms of which he was suspended unconstitutional and invalid. While Magashule’s founding affidavit – heavy on political bombast and sparse on legal argument – is not a model of clarity, it does assist with a preliminary assessment of the merits of his case. The bottom line: the affidavit is a confused mess and advances many nonsensical arguments – although at least one of his arguments does raise a potential problem for the ANC.

It is somewhat ironic that Ace Magashule is relying on the 2012 Constitutional Court judgment in Ramakatsa v Magashule (in which Magashule was on the losing side) as the basis for the legal challenge of his suspension. Back in 2012 the Free State ANC – headed by Magashule – threatened to take disciplinary action against Mr Ramakatsa and other members of the party for approaching the court, invoking a decision from the ANC’s Polokwane conference that any member who took the party to court should be expelled.

In Ramakatsa, the Constitutional Court held that members of a political party have a right to participate in the activities of their party – guaranteed by section 19 of the Bill of Rights – and that a court can declare any action taken by the party invalid if it is in breach of the party’s Constitution. The Court also confirmed that the provisions of a political party’s Constitution can be invalidated if these are in conflict with the South African Constitution. However, the court also cautioned that it would not normally interfere with the manner in which political parties choose to organise their internal affairs, as political parties are voluntary organisations whose members decide on the internal rules of the party.

For good reason this is left to political parties themselves to regulate. These activities are internal matters of each political party. Therefore, it is these parties which are best placed to determine how members would participate in internal activities. The constitutions of political parties are the instruments which facilitate and regulate participation by members in the activities of a political party.

It is against this backdrop that the quality and accuracy of the submissions in Mr Magashule’s affidavit should be assessed.

1) False and contested factual claims

Mr Magashule has not done himself any favours by making false and contested factual claims in his affidavit. For example, he claims that the criminal charges he is facing relate to his alleged failure to “implement oversight over certain functionaries”, which he calls “an oddity, if not a downright absurdity”. This claim is false, as he is facing a number of charges of corruption and fraud, alternatively theft and money laundering, for allegedly corruptly accepting various amounts of money from a company awarded mega tenders by his government. Only one of the charges relate to his failure to report corrupt transactions by others.

It is difficult to assess the veracity of several other factual claims made in Magashule’s affidavit, but his claim that the letter in which he purports to suspend Cyril Ramaphosa was written before the letter suspending him, stretches credulity. Magashule claims that the letter from Jessie Duarte suspending him was both a reaction and a pre-emptive strike to the letter he wrote suspending Ramaphosa, but as CASAC Research Officer, Dan Mafora pointed out on Twitter, on Magashule’s own version, he didn’t deliver his letter purporting to suspend Ramaphosa until after he had received his letter of suspension. In the absence of evidence to back up his claim, it is not credible and it will be disregarded by the court if denied by the ANC.

2) The argument on the watering down of the ANC conference resolution on stepping aside

Mr Magashule attacks the decision taken by the National Executive Committee (NEC) of the ANC to suspend him by arguing that the NEC unlawfully “narrowed” the scope of a resolution taken at the NASREC conference that “ANC leaders and members who are alleged to be involved in corrupt activities, should, where necessary step aside until their names are cleared”. This it did by requiring that only those charged with a criminal offence step aside or face temporary suspension. He argues that by doing so, the NEC “amended” the conference resolution, something it does not have the power to do.

This argument is not going to fly, first, because Mr Magashule’s argument is not backed up by the facts. This is because the NEC guidelines dated 13-14 February 2021 not only provide for the stepping aside and suspension of those facing criminal charges, it also allows for the stepping aside and suspension of those members merely facing allegations of corruption. Although the processes to be followed in the two cases are different, the NEC guidelines does not in fact narrow or amend the conference resolution, but gives effect to it.

But there is a second problem with this argument, namely that Mr Magashule was suspended in accordance with section 25.70 of the ANC Constitution. This amendment to the ANC Constitution was adopted at the NASREC conference by the same delegates who supported the stepping aside resolution. This means that Mr Magashule is in effect arguing that the NEC acted in breach of the ANC Constitution when it adopted guidelines that rely on a section of that very Constitution.

But a validly adopted provision of the ANC Constitution cannot be in breach of the ANC Constitution which it is part of. This is in any event the position taken by the Constitutional Court regarding amendments of the South African Constitution in United Democratic Movement v President of the Republic of South Africa (the so-called floor crossing case), where it confirmed that:

Amendments to the Constitution passed in accordance with the requirements of section 74 of the Constitution become part of the Constitution. Once part of the Constitution, they cannot be challenged on the grounds of inconsistency with other provisions of the Constitution.

3) The argument that section 25.70 is in breach of the South African Constitution

Mr Magashule further argues that section 25.70 – like the entire step-aside regime – “is out of sync with the provisions of both the Constitution of the Republic and the relevant provisions of the ANC constitution, more particularly as it violates both rules of national (sic) justice and, more importantly, the presumption of innocence”.Although this part of Mr Magashule’s affidavit is rather vague and unclear, I cannot imagine that any version of this argument is likely to find favour with the courts.

This is not only because – as I explained above – a validly adopted section of the ANC Constitution cannot be invalidated because it is “out of sync” with other parts of the ANC Constitution”.  It is also because the argument that section 25.70 of the ANC Constitution is in breach of section 35(3(h) of the Bill of Rights, is obviously a non-starter – as anyone vaguely familiar with the relevant Constitutional Court jurisprudence would know.

Section 35(3)(h) states that “every accused person has a right to a fair trial, which includes the right to be presumed innocent, to remain silent and not to testify during the proceedings”. The Constitutional Court recently confirmed in 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 that section 35(3) “forms part of the fair trial rights” and are  therefore “reserved for arrested and accused persons” in a criminal trial. Section 35(3)(h) of the Bill of Rights are therefore not applicable to ANC members who face suspension by the party, and the section cannot be invoked to challenge the constitutionality of section 25.70 of the ANC Constitution.

In Ferreira v Levin (and again in the judgment referred to above), the Constitutional Court suggested that section 12 of the Bill of Rights (protecting the freedom and security of the person) may in some instances be invoked by individuals outside a criminal trial setting to protect similar interests than those protected by section 35(3). But whether it could be invoked here to nullify section 25.70 of the ANC Constitution is doubtful as the provision does not threaten the liberty of the suspended person. In any event, this question is now academic as Magashule failed to invoke section 12 in his papers. (It is worrying that Mr Magashule’s lawyers seemingly failed to do their homework before advising him on this matter.)

4) The argument that the power to implement section 25.70 of the ANC Constitution lies with the Secretary General and not with the NEC

While the arguments discussed above are all based on a fundamental misrepresentation or misunderstanding of both the applicable law and the relevant facts, Mr Magashule does advance one intriguing argument that is worth considering. He argues that section 25.70 of the ANC Constitution grants a discretion to the Secretary General of the ANC to decide on whether a suspension should be affected and how it should be implemented. 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.

Magashule argues that the underlined phrases suggest that the Secretary General is the person who is required to make the decision on suspension in terms of section 25.70, as he must (subjectively) be satisfied that suspension would be in the interest of the ANC before deciding on whether to suspend a member or not. On the face of it, this is not a bad argument as the phrases do seem to suggest that the Secretary the Secretary General has a discretion in the matter.

However, this is not the full story, as the section also states that the Secretary General acts “on the authority of the NEC” when deciding on suspension. This probably means that the Secretary General requires permission from the NEC before effecting a specific suspension. (It could arguably also mean that he acts in the name of the NEC on whose behalf he implements the section, but I am not sure this is the most plausible interpretation of the phrase, given the fact that the Secretary General’s powers stipulated elsewhere centre on the implementation of NEC decisions.) Nevertheless, it is not clear whether and if so how, this phrase qualifies or limits any discretion the Secretary General might have in implementing the suspension clause.

If NEC permission is required for this section to kick in, it raises questions about how the section should be implemented if the NEC authorises the suspension of the Secretary General himself. Obviously, in such a case, it makes no sense for the Secretary General to decide on whether he should be suspended. Does this mean that the NEC must then take the decision and exercise the discretion that the Secretary General would normally exercise, or does it mean that the Deputy Secretary General should be the one to make the final decision after satisfying herself that the suspension is in the interest of the ANC?

The issues here are complex and I do not have enough space or time to engage fully with how this section might be interpreted in the light of other provisions in the ANC Constitution, and how the section should be implemented in a case where the Secretary General is being suspended. I am looking forward to read the legal arguments presented by all the parties on this particular issue, after which I would be in a better position to assess the strength of this argument.

5) Conclusion: a member of a political party who asks the court to nullify their suspension or expulsion may win some of the battles, but always loses the war.

I have not been able to deal with all the muddled and uninformed arguments advanced in Mr Magashule’s founding affidavit (including the mistaken argument that lodging an appeal of his suspension suspends the suspension), but I have identified and discussed what I believe is the one argument that might have some traction. If the court accepts this argument (I make no prediction on how likely this is), Mr Magashule will win an important political victory. As the various court battles between Patricia de Lille and the DA leadership illustrate, a party member who successfully turns to the courts to fight their suspension or expulsion can do severe damage to the image of the party and weaken its leaders if he or she has some success.

But in the end, the individual will not prevail over the party, unless that individual enjoys majority support within relevant party structures. This is because the party can always “redo” a suspension or an expulsion to correct the mistakes which led to court defeat. (Once again, the Patricia de Lille saga nicely illustrates this point.) If I am correct, the question is not whether the ANC will be able to suspend or expel Magashule, but whether it will be able to do so without suffering damaging legal defeats in court first.

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