Ace Magashule’s battle with ANC a win-lose situation

ANC members suspended under the party constitution’s clause 25.70 could benefit should the high court declare it unconstitutional, but the main challenger of the clause, Ace Magashule, could still lose the matter because he had a hearing.

This clause was central in Magashule’s challenge in which he took the ANC to court for suspending him – a move he believed was contrary to the country’s constitution.

He claimed to have had no hearing prior to his suspension which violated the Audi alteram partem principle. But it was argued by the ANC’s counsel, Advocate Wim Trengove, that Magashule was given ample opportunity to give his side of the story prior to being suspended.

Indeed, he participated in the “night of the long knives” meeting which took place at President Cyril Ramaphosa’s Johannesburg home on Sunday, 2 May. He was subsequently suspended by the party’s national working committee (NWC) for defiance the following day. But he defied the NWC decision and instead issued a suspension letter against Ramaphosa, a decision that the court was told he was not empowered to make and was motivated by revenge.

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Magashule’s legal team, led by Advocate Dali Mpofu, insisted he had the power to suspend any member – including Ramaphosa – and that he was being targeted by the Ramaphosa faction. The court was expected to rule on the constitutionality of clause 25.70 which required that an indicted member may be suspended if such a suspension would be in the best interest of the organisation.

Magashule was indicted and appeared in the Bloemfontein court on a few occasions along with 16 others – including former cooperative governance and traditional affairs MEC and ex-Mangaung mayor Ollie Mlamleli. The group was charged with fraud, corruption and money laundering, among others, in connection with the R255 million asbestos roofing replacement saga in the Free State.

It allegedly occurred when Magashule was still the premier of the province. Should the court rule in his favour and declare the ANC constitution’s section 25.70 unconstitutional because it did not provide for a hearing, it would be partly a victory for Magashule but still a loss.

He was afforded an opportunity to be heard and state his case by the party. In fact, it was argued in court that he participated throughout processes that led to his suspension, including the national executive committee deliberations on the implementation of the step-aside rule.

Early this year the ANC gave all party members facing corruption and other serious charges 30 days to step aside.

While Magashule would be losing even if the court nullified the clause, other party members suspended or facing such suspension for defying the step-aside or any disciplinary process for that matter, would benefit from his litigation.

This is because the ANC could be forced to insert a provision for a hearing in future, which would be too late for Magashule. The step-aside rule also did not provide for a hearing and, in defence of that, ANC deputy secretary-general Jessie Duarte said the rule was meant to protect the ANC.

She said the ANC had its rules that governed the behaviour of its members.No matter which way the ruling goes, the outcome would have wider implications for the ANC disciplinary processes.– ericn@citizen.co.za