South Africa

POLITICS ANALYSIS

Trengove and Mpofu appointments signal the high stakes of the Ace case

Trengove and Mpofu appointments signal the high stakes of the Ace case
Left, Advocate Wim Trengove, Advocate Mpofu Dali. (Photos: Gallo Images)

Will the courts agree that Ace Magashule's case is urgent, considering it is an internal party matter?

The appointments of Wim Trengove and Dali Mpofu as senior counsel to argue the cases for and against ANC secretary-general Ace Magashule’s suspension reveal the high stakes at play.  

The two are among the country’s most prominent lawyers, and it is likely that President Cyril Ramaphosa is retaining Trengove on his own account.  The silk often acts for the President in the most complex legal cases. The party’s packed in a full legal team of four senior counsel and a junior who Ledwaba Mazwai Attorneys will instruct. In addition to Trengove, the ANC will be represented by Ngwako Maenetje, Fana Nalane and Buhle Lekokotla.

News reports reveal the ANC’s finances are in dire straits and that it is unable to make payroll on time most months. The Sunday Times has also reported that it has not made its SARS tax payments, nor has it paid over staff members pension contributions. 

On Friday, May 14, Magashule’s legal team announced its intention to have his suspension by the ANC overturned in an urgent application in the Gauteng high court on 1 June. That immediately stopped the ANC from taking disciplinary action against him for not meeting its 48-hour deadline for him to apologise to the party’s membership for trying to suspend Ramaphosa on 3 May. 

Instead, the entire imbroglio now goes to the courts, where the appointments reveal that the case is likely to be anything except clear-cut.  It will be a legal slug-fest where Magashule’s papers indicate he will draw upon his Constitutional rights to belong to a political party, his right to fair administrative action and his right to be presumed innocent.  The major part of his action will be to argue that the ANC violated its own Constitution in how it amended the step-aside rule between 2017 (when the ANC passed it) and 2021 (when the ANC finally implemented it).  And Magashule will also argue that his deputy, Jessie Duarte, did not have the requisite authority to suspend him at the time she did. She had not yet been formally appointed to act as secretary-general.  He uses evidence that Duarte still had to get his signature to allow regional party conferences to go ahead.

Inside the ANC, there is unhappiness at how the step-aside rule has ended up in court. The rule applies to the party’s conference resolution, which said that all cadres reported being involved in corruption cases had to step aside from their party or legislative roles.  And party leaders are angry that factional battles have now spilt out so viciously that they end up in open court. The ANC likes to keep its fights in-house, but it is increasingly unable to do so.  

Suspended ANC Secretary-General Ace Magashule. (Photo: Gallo Images / Sowetan / Thulani Mbele)

Magashule’s papers reveal that former president Thabo Mbeki at the ANC NEC meeting of 8 to 10 May echoed a question about whether or not the ANC still exists?

“Do we still have an organisation called the ANC?” the papers reveal Mbeki asked as he supported calls for ANC leaders to go on a retreat to answer the question. Mbeki was the only one of four veteran ANC leaders, whom Magashule received counselling from in the past month, who said he should step down. Mbeki did not make Mbeki’s statement to support the suspended secretary-general but to raise a growing view that questions the coherent existence of the ANC.  

The ANC’s view

Early legal opinion by the ANC showed the party could rely on the 2012 Constitutional Court judgment of Ramakatsa and others vs Magashule and others. It found that “…the (SA) Constitution does not spell out how members of a political party should exercise the right to participate in the activities of their party. For a good reason, this is left to political parties to regulate”.  The contract between the party and its members is unique, the ANC says.

In that case, members had gone to court to oppose how Magashule had run the ANC’s Free State operations to manipulate branch election outcomes.

Ironically, Magashule is relying on the same judgment against him to now bolster his court application. The judgment also found that “It bears repeating that political parties may not adopt constitutions which are inconsistent with (the Constitution). If they do, their constitution may be susceptible to a challenge of constitutional invalidity.”

Magashule will ask the court to declare the ANC step-aside rule and the suspension rule 25.7 of the ANC Constitution to be unlawful, unconstitutional, invalid and null and void (thus lifting his suspension).  

The ANC, which has not yet formally drawn up its legal arguments, is likely to argue that as a voluntary organisation, it can set its own rules as long as these are in sync with the Constitution. It will argue that it treated Magashule with procedural fairness. And it is likely to use a 2014 Eastern Cape judgment involving the expulsion of 13 councillors by the ANC.  In Madingane and others vs Mbashe Municipality, the Eastern Cape Division of the high court said that the ANC Constitution was consistent with the country’s Constitution. 

The early ANC opinion raised a view of Pierre de Vos.  “The South African Constitution does not guarantee for anyone the right to be presumed innocent by ordinary citizens (and one may add voluntary associations like the ANC) until he or she is proven guilty in a court of law.  It is not a right at all and is generally invoked by politicians and members of the public who wish to avoid any discussion of alleged wrongdoing either by themselves or their friends and allies.”

Instead, “…the Constitution guarantees for everyone the right to a free trial, which includes the right to be presumed innocent at that trial”.  

But is it urgent? 

Magashule’s lawyers will ask the court to hear his case expeditiously on an urgent basis. This may not find willing judicial ears as it is an internal party matter.  

Still, Magashule argues in his papers that: “…upon reflection and bearing in mind the position of the ANC as the custodian of the state and the ruling party for 27 years since the advent of democracy in South Africa, it will be clearer that the attendant crisis in the ANC spells a crisis for all South Africans, whether or not they support or vote for the ANC.”  The courts have recently thrown out requests for urgency on more compelling grounds.  

But 1 June is still a date to mark as Magashule takes his power battle to the courts. DM

Gallery

Comments - Please in order to comment.

  • Paddy Ross says:

    This is turning into more like The Mad Hatter’s Tea party that the governing political party trying to govern the country.

  • Louis Nel says:

    Trengove for Pres Ramaphosa’s own account? I wonder how Mpofu et al. will be paid for in this instance?

    • Fanie Tshabalala says:

      A very good question. But Mpofu is a shady lawyer with shady friends, so I’m sure it will be shady money, or perhaps none at all.

      • John Clemitson says:

        O, I can guarantee that Mpofu does nothing for free – he’s in it solely for the money and the purpose of enhancing his public profile. The money will come from shady characters (enough of them around the fringes of the ANC and EFF, in the shadows, while living in mansions and driving fancy cars).

      • John Bestwick says:

        Don’t worry. Mpofu is a blunt instrument who relies on emotional nonsense instead of the law. Can’t win a case if he wanted to. Ironical that Elias uses the EFF lawyer. Where is the Sikhakane Zumavirus lawyer?

  • Peter Dexter says:

    It becomes clearer by the day that very few (if any) in the ANC are even slightly interested in their oaths of office and serving the people of SA. It’s all about the looting of state resources, and concepts like ethics are not even a consideration.

  • Clyde Smith says:

    How on earth has Dali Mpofu managed to get himself described as a ‘prominent lawyer’? This is not exactly someone who bestrides his profession like a legal giant. Perhaps prominent in this case refers to his ego.

    • John Bestwick says:

      Too true. Because he was tangled with Winnie is his claim to fame. And look at his client list. Everyone of them more shady than the next.

    • John Stephens says:

      I dare say Dali is not prominent as a lawyer. He is prominent only as a promotor of legal and political nonsense. A defender of the indefensible and a supporter of the EFF racist ideology, and fomenter of division among South Africans.

  • Charles Young says:

    Trengove versus Mpofu: exacting legal argument versus political spectacle and tantrum.

  • Sandra Goldberg says:

    I wonder if the ANC is at all shamed by this absurd spectacle? At a time of great national crisis, high unemployment, joblessness and poverty, as well as a largely unvaccinated citizenry, who is going to pay for this circus , since the government is virtually bankrupt?

    • John Bestwick says:

      Well the Gauteng MEC for health is now unhealthy. These muppets could not run a liberation movement, so why expect them to be anything other than thieves and liars in government. The true ANC is dead or dying. Only the thieves are left

  • Kanu Sukha says:

    Mpofu’s appointment as Aces’s legal counsel has the distinction of a legal counsel who specialises in ‘defending the indefensible’ ! Not a particularly resounding accolade …. one would think ? BUT … it is a ‘good’ way of making money methinks ! Most likely to come from the taxpayer to boot !

  • Johan Buys says:

    On a quick poll, the vast majority suggested that this trial be run over the same term as the JZ corruption trial. Finalise by 2040 sounds like a good plan

  • Graeme J says:

    Let’s all sit by and wait for Mpofu to play the race card against Trengove… the ultimate irony.

  • J.F. Aitchison says:

    Why doesn’t the ANC just give Magashule the boot, like they did to Malema. He certainly has brought that organisation into ill repute and made it look very foolish.

  • Sydney Kaye says:

    Dali Mpofu is only “one of the country’s most prominent lawyers” in his own mind. I would “think” mouthpiece for the mob” is more apt.

  • John Bestwick says:

    The Secretary General who is the worst, dumbest, most criminal administrator of a political party imaginable. A populist rabble-rousing muppet highly infected by Zumavirus. I wonder what he thinks of Duduzane wanting the Presidency instead of him? I also wonder which legal person is advising him?

  • Glyn Morgan says:

    Very interesting, anything can happen, but will the ANC pay their lawyers?

  • Auke Van Der Meulen Van Der Meulen says:

    The ANC’s financial woes is directly linked to the taps being turned down. The party was/is the biggest single looter

  • Memphis Belle says:

    Just shut the corrupt useless ANC down once and for all.

  • Charles Parr says:

    The lawyers need to advise on this but, in my view, there is nothing to say that this case will be heard on an urgent basis and once Ace’s criminal case starts the writing might be on the wall. Let’s see if the ANC will sacrifice a senior person to make it look as though it’s reforming.

  • Scott Gordon says:

    Who gets paid by Whom ? Pro bono ?
    The ANC cannot pay workers let alone silk !
    Am glad the ANC is imploding , best thing for SA .
    RET /WMC does not put food on the table !

  • Scott Gordon says:

    How though ? A rates boycott was my idea , no traction here !

  • Anne Chappel says:

    What a fiasco! The guilty fight in the courts, dragging out every point they can. They waste time and money. Crooks … they are destroying South Africa.

  • Chris 123 says:

    Well of course Mpofu is there for ACE shame he can’t use the race card.

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