On Friday it was confirmed that the suspended ANC secretary-general Ace Magashule is going to court to challenge his suspension. In his papers he makes a series of claims: that he was treated unfairly, that his attempted suspension of President Cyril Ramaphosa as leader of the ANC has legal standing, that his own suspension was an attempt to ensure Ramaphosa wins another term as ANC leader and that it is all about politics. 

However, just by lodging the challenge with the court, he is also raising the stakes in the entire game and saddling his own career with another layer of risk.

It is clear that Magashule has lost the game of politics within the ANC’s national executive committee. By going in this direction he is trying to broaden the playing field, with still no evidence that he is notching political wins on the ground level. In the end, his ultimate defeat may in fact be deeper than it could have been otherwise.

TV news stations had fun on Friday. They ran clips of Magashule famously saying that ANC members should not take their own movement to court. It is always good to catch a politician drowning in his own hypocrisy.

  NOM- EM by Daily Maverick on Scribd

And yet, from Magashule’s point of view, there appears to have been no other option, the strongest indication that he has lost the game that really matters within the movement: the game of political might.

The option of throwing more chaos into the already messy space, a move to  delay the entire process appears to him to be the last possible avenue to explore.

Magashule’s court application contains some interesting admissions.

For example, he says that the Nasrec Conference in 2017 saw the ANC being split “right down the middle”.

He also simplifies the situation by saying that the “CR17 ticket favours a reformist and tentative approach to transformation, with too much emphasis on pacifying investors, ratings agencies and local big business, which remains white dominated. On the other hand, the other grouping believes in a much more fast-paced and radical economic transformation programme, which is more focused on the needs of the poorest and most marginalised section of the population and not the richest of them”.

In a way, this sums up, according to his world view, the situation in the ANC. It is also an attempt to racialise the entire argument, to once again push the sub-text that Ramaphosa is a tool of “white monopoly capital”.

Nowhere does Magashule show any evidence of his own attempts to help the “most marginalised section of the population” during his notoriously corrupt time as Free State Premier or when he was the leader of the ANC in the Free State. 

Magashule also appears to have contempt for some in the NEC who he believes have jumped ship.

He says: “Save for a few opportunistic individuals who were leading lights in the NDZ faction but who turned to the CR17 faction in the realistic hopes of securing ministerial positions, the factions have remained intact and operate on the basis of mutual distrust and suspicion of each other.”

He goes on to say that “there are no angels and devils, as the issues are carefully choreographed in the mainstream media, which supports the dominant CR17 faction”.

Then he claims:

“The real motive behind my being purged is the desire to remove me, by hook or by crook, from the all-powerful position of SG, so that the road to the re-election of President Cyril Ramaphosa and his faction at the next National Conference is made easier. I would add that the fears that I would interfere with the democratic process are a misplaced sign of unnecessary panic.”

This is perhaps one of the strongest claims that Magashule makes. It was always obvious that the Nasrec outcome would result in a divided leadership at the top of the ANC, and thus it could not survive the five-year period intact.

At the same time though, there is no evidence that Ramaphosa has reason to believe he would lose a leadership election now.

He won it the last time against an opposition led by a sitting President, with a lot more money, state resources, more organisation and a better figurehead (in now COGTA Minister Dr Nkosazana Dlamini Zuma) than he currently faces.

Why would this grouping be stronger now than it was at Nasrec?

Magashule also points out that many of the resolutions passed at Nasrec (such as the nationalisation of the Reserve Bank, the introduction of a Basic Income Grant and on land) have not yet been implemented, but the implementation of the “step aside resolution” went into overdrive when it became clear he was going to be criminally charged.

He is, of course, correct. It does beg the question of using “whataboutism” as in “why is my own crime/misconduct/misbehaviour investigated before others”. It is a sad state of affairs when a secretary-general of the ruling party feels being charged with serious crime is not a matter of priority for the movement of which he is supposed to be one of the paramount leaders.  

Still, even that argument falls flat. There is a lengthy list of resolutions passed at ANC conferences which have not been implemented yet. In 2007 the ANC resolved to set up a Media Appeals Tribunal, which of course did not happen. (It also resolved to dissolve the Scorpions, which did happen, a decision now lamented by many.)

In 2012 at Mangaung the ANC resolved to implement the National Development Plan, and that “urgent action is taken to deal with public officials, leaders and members of the ANC who face damaging allegations of improper conduct”.

With the exception of one MEC in Limpopo who resigned, this did not happen either.

So it could be argued that the “step aside” resolution has actually been adopted not once, but twice by ANC branches at a national conference before 2017.

Magashule may be on stronger ground when he makes the point that the Nasrec resolution has been narrowed.

He says that the NEC has resolved that those criminally charged must step aside, when the resolution says those implicated in wrongdoing must step aside. He says this means that “the application of the step-aside rule has been mortgaged to the NPA, which is not a structure of the party”.

This has been part of his attempt to broaden the scope of the resolution. It is on this basis, for example, that he tried to suspend Ramaphosa’s leadership of the party.

However the NEC has a strong argument in that it would be impossible to assess the actual definition of the phrase “implicated in wrongdoing”.

Would it involve a newspaper report? Which newspaper? The Sunday Times or The Sunday Independent?

Would an affidavit making the claim against a person be enough, or would more proof be required?

It could argue that at the very least, the use of “criminally charged” is legally definable, and thus can actually be implemented as a principle. The use of “implicated in wrongdoing” simply cannot be implemented in its current form in a real world, where entire media houses have been placed in the hands of one of the ANC factions.

Magashule says that he understands that various examples of case law will be used to bolster his argument, in particular the cases of “Ramakatsa vs Magashule” from 2012, and “Ramakatsa vs African National Congress” which was resolved this year.

The first case relates to the way in which Magashule’s Free State ANC ran its branch meetings before the 2012 Mangaung Conference. The second (these cases involve two separate people with the surname “Ramakatsa”) relates to how his Free State ANC ran branch meetings before the Nasrec Conference).

In both cases Magashule was on the losing side. And it now appears he is going to use the case law they have created to argue in his favour.

Magashule appears to believe that his suspension and the situation in the ANC is dangerous for the country. He says that “literally every day which passes edges the nation closer to a crisis”, and that “The speedy resolution of this dispute will therefore not only benefit the parties and their organisation but also the stability of the country, the economy and investor confidence”.

The nature of this crisis is not spelt out, but Magashule still appears to believe that this crisis could somehow threaten the country’s stability.

However, there is simply no evidence that this is true. There has been no mass movement or uprising to defend Magashule, no protests, no demonstrations, no people massing to support him, or his grouping.

Tony Yengeni doing a series of interviews on TV does not necessarily amount to a national crisis. Twitter bots calling for violence do not amount to national crisis either, nor front pages of Independent Media newspapers.

Already over the last few days there has been discussion about whether Magashule can be suspended when the national Constitutional says that all are innocent before proven guilty.

While this is a technical legal area, employers across the country are allowed to suspend an employee, even on the basis of only a suspicion of wrongdoing. Magashule receives a salary from the ANC, and will continue to receive that salary during his suspension. This may mean that the ANC does have the legal right to suspend him as it has done.

But Magashule’s action has certainly raised the stakes politically.

Should he win this application, he could then try to stage a triumphant return to Luthuli House.

But he would still have lost the politics within the NEC. Using courts to  force the change of political structures’ decisions could mean branches and provinces would not accept his authority, an act that would render his return meaningless.

In NEC meetings he could also be ignored. Or those meetings would simply dissolve into chaos.

While this might have the effect of causing more disruption to the ANC, it would not necessarily mean Magashule would return to any real political power or authority.

Of course, should he lose this application, the situation would become way simpler for Ramaphosa. The NEC could lodge more serious disciplinary charges against Magashule.

He would have taken the ANC to court (and lost) despite telling other members not to do so. He would have tried to suspend Ramaphosa’s leadership of the party (acting only on his own authority and without the support of any structure), he would have refused to apologise for doing so, and he would have refused to step aside.

All of this, taken together, could amount to a serious case for him to be expelled from the party permanently.

This is the only option left to him. And while the case could take some time to reach certainty it appears unlikely that it will increase his political support in any way.

Rather, it may increase the chances of his ultimate political demise. It appears clear that Magashule is out of (peaceful) political options. DM