Ace Magashule’s suspension stands as high court dismisses – with costs – each legal argument he mounted in a slam dunk judgment

The South Gauteng High Court in Johannesburg has dismissed with costs ANC secretary-general Ace Magashule’s application to have his suspension declared illegal. He has lost on every argument mounted by Advocate Dali Mpofu.

In a unanimous judgment, judges Jody Kollapen, Edwin Molahlehi and Sharise Weiner demolished his defences, declaring that the ANC’s Rule 25.7, by which members charged with corruption must step aside, to be legal.

In addition, the court found that Magashule’s midnight "suspension" of President Cyril Ramaphosa on 3 May for allegedly violating the same rule as party president, was illegal.

“There is no substance to the view that the court must grant a declarator (a declaration of legality)... President Cyril Ramaphosa has not been criminally charged,” said Kollapen for the court.  “There is no basis for granting the relief sought.”

Magashule was defeated on every single defence mounted by Mpofu, who argued that Rule 25.7 was unconstitutional when measured against both the ANC constitution and the country’s Constitution and that various of Magashule’s rights had been denied to him when he was suspended. He argued that Magashule had suffered a blow to his natural and constitutional rights to dignity, to be heard, and to free political association.

Not so, said the courts. 

In a summary judgment, Kollapen said that Rule 25.7, the ANC step-aside rule, is consistent with the ANC’s own constitution and disciplinary code. As to whether the rule violated South Africa’s Constitution, and therefore Magashule’s rights, the court was unequivocal: it didn’t.

Mpofu argued that the step-aside rule violated the principle of audi alterem partem (the right to be heard) but Kollapen said that it was a precautionary suspension pending the outcome of the corruption charges Magashule faced. The court said the Constitutional Court had found such precautionary suspensions did not deny the right to be heard in the Long vs SAB judgment.

Mpofu also argued that the ANC’s actions had harmed Magashule’s constitutional rights to free political association. 

Kollapen disagreed, with the court finding that “the ANC constitution provides comprehensively for participation (by its members)” and that it was the right of a political organisation to discipline, suspend or expel its members as long as there was a fair procedure. To suggest that every attempt to regulate the relationship with its members was unconstitutional, could not stand up to legal scrutiny, the court found.

“Rule 25.7 (the ANC step-aside rule) did not amount to discrimination,” said Kollapen.

The judgment also demolished Magashule’s arguments that the ANC national executive committee had “narrowed down or repurposed” the original four conference anti-corruption resolutions passed at its Nasrec conference in 2017. 

 “(There is) no merit in the contention that there was a narrowing down or repurposing of the rule and it must fail,” said Kollapen, who said that the conference had passed “broad and general principles” and had left it to the party’s NEC to give substance to the resolution.

The court found that Magashule had “the fullest opportunities” to be heard at party meetings and the Integrity Commission. He had been a “part of all meetings” where the step-aside rule had been determined and refined.  His claims to the contrary had “no merit and stood to be rejected”.  

Magashule also lost on his claim that ANC Deputy Secretary-General Jessie Duarte did not have the standing to write his suspension letter.  

“Neither the (ANC) NEC or NWC (National Working Committee) could say he should suspend himself,” said Kollapen. 

Magashule has lost with costs. DM