South Africa


Revealed: Why Mathews Phosa thinks the step-aside rule won’t fly

Former Mpumalanga premier Mathews Phosa. (Photo: Gallo Images / Nasief Manie) / Suspended ANC Secretary-General Ace Magashule. (Photo: Gallo Images / Darren Stewart)

Unless the stepping aside is voluntary, it is illegal in terms of the ANC’s constitution, says former premier and lawyer.

Ace Magashule’s application papers for reinstatement as ANC secretary-general have for the first time made public why party grandee and former Mpumalanga premier Mathews Phosa thinks the party’s step-aside rule does not fly.

The opinion could be of persuasive value in court and could also be used by the estimated 30 cadres affected by the step-aside rule, which says that once criminally charged, ANC members and representatives must stand down or face suspension.

Magashule sought and paid for at least four different legal opinions as part of his campaign to stay in office.

Phosa’s opinion says: “While the definition of ‘step aside’ is not clearly laid out anywhere, the language in context suggests the person who is the subject of these processes should absent themselves from all activities and appears to be a codeword for voluntary self-executed suspension. 

“If more than that is intended by the phrase ‘step aside’, it would violate the ANC constitution and any action instituted under such an expanded definition would be open to being set aside.” 

Magashule has been suspended in line with Rule 25.7 of the ANC constitution, which provides for the temporary suspension of members facing criminal charges. Magashule is facing more than 70 counts of fraud, corruption, money laundering and other charges. 

Phosa’s position is that no suspension without a preceding disciplinary action is possible in the ANC – in line with the right to be heard. 

He quotes the ANC disciplinary code, which says, “The ANC shall have the jurisdiction to discipline any member… for committing any act of misconduct”, but which adds the rider that “[Disciplinary proceedings] shall not be used as a means of stifling debate or denying members their basic democratic rights.”

Phosa’s opinion says that the step-aside rule cannot be decoupled from the party’s disciplinary process. 

“The conclusion is that the suspension of any member would be unlawful if the suspension is not an intrinsic part of a disciplinary process under the ANC constitution.

“None of the resolutions, statements and policy postures has the legal effect of creating a stand-alone process for suspending a member under the circumstances currently being experienced,” he concludes. 

The ANC is relying on judgments that have found that its constitution is aligned with South Africa’s Constitution and that as a voluntary organisation it has the right to make its own rules. 

Phosa’s opinion also suggests there is forum confusion in the ANC. Currently, the party’s Integrity Commission, Disciplinary Committee and a step-aside appeals panel are all charged with dealing with oversight of the step-aside rule and with judging misconduct by party members.

President Cyril Ramaphosa told the Zondo Commission of Inquiry that corruption was harming the ANC’s standing and its electoral prospects.  The step-aside rule was one of a number of measures aimed at renewing the party, he said when he appeared before the commission last month.

While he does not deal with it in detail (because it is out of the scope of the legal advice Magashule sought from him), Phosa does write that: “The voluntary relinquishment of a position in an organisation such as the ANC, whether intrinsic to the person or based on advice or pressure from external or internal sources is primarily a political and moral question.” 

By moving the battle to the court, Magashule has removed the moral and political imperative for him to step aside. He has asked for a court date of June 1.

The ANC last week appointed Phosa to lead a panel to recharge its commitment to the amendment of section 25 of the Constitution, which sets out the process of land expropriation without compensation. DM


Comments - Please in order to comment.

  • Ediodaat For Today says:

    This is like being charged for GBV or GBH 70 times & allowed to work in the crèche because it goes against the constitution of the Crèche. You are at risk of the staff and the children being hurt. Damaging the credibility of the organisation. Only in Africa you can do this and remain in politics.

  • Coen Gous says:

    If Phosa is right, and Magashule return as SG of the ANC, it will not only result in incredible havoc in the ANC, but the whole country will suffer as a result. Criminals ruling the country, Russian style

    • Geoff Young says:

      Couldn’t agree more. The future of this country may be left to the courts to decide based on spurious legal technicalities. Once again, it’s up to Cyril and his allies to step up and eject Ace from the party once and for all.

    • Glyn Morgan says:

      The only solution is to strengthen the democratic opposition. Full stop!

  • Peter Doble says:

    The country via its political governance is just made weaker every day. There is no admittance, no guilt, no integrity, no punishment – just contempt and dismissal of the rule of law. Yet the people who suffer most continue to support the system. Blind faith will result in total failure.

  • Miles Japhet says:

    Seems that, even if he exercises his right to be heard, he can never change the fact that he has been criminally charged, and that is the trigger for the step aside. Poor logic from Phosa !

  • Trevor Pope says:

    Until the voters punish the party at the polls, they won’t do anything more than the absolute minimum to deal with the rotten apples, and that doesn’t seem likely. All very depressing.

    • Glyn Morgan says:

      Right. The sooner the media get that picture the better for SA. News24 and DM seem to think that trashing the democratic opposition for trivial reasons is some sort of smart. It is promoting a one party state.

  • Gerhard Pretorius says:

    And I always thought Phosa was a hotshot lawyer. In labour law a person gets suspended with pay if it is felt that his/her presence can be detrimental to proceedings and the operations of the institution. A hearing follows later. In such matters always ask who has the moral highground.

  • Dennis Bailey says:

    I’d like to hear Pierre on this.

  • Sydney Kaye says:

    Cyril seems to be wrong when he said Corruption harms the ANC at the polls. Look at the recent results where they bashed the no-corruption DA. Go figure!

    • Glyn Morgan says:

      The corrupt ANC was helped by the twisted thinking of some media “opinionistas”. “Vote for Cyril, he is good ANC”. There is NO GOOD ANC! Peter Bruce, please advise your tips for the next elections.

  • Johan Buys says:

    Ja well, opinions are like AHs. Everybody has one and they are very difficult to change.

    The past month has shown that Ace does not have the support within ANC he thought he did. Dead man walking?

  • Kb1066 . says:

    I would assume that Magashule as an employee of the ANC would fall under standard labour laws. As I understand it an employer can suspend an employee for disciplinary reasons

  • Ian McGill says:

    These guys can talk and talk and talk ’till the cows come home and STILL , nothing gets done. I think a few lessons in English grammar is needed. What chance the country when Cyril can’t control “his” people?

  • Veritas Scriptum says:

    What is going on inside the ANC for all to see I think is commendable. Lets hope that there is renewal within the organisation where meritocracy and not cadre deployment becomes the order of the day and our safeguard for the future. The ANC will be with us for a long time lets help it renew itself.

    • Charles Parr says:

      It would appear that the general opinion here is that the ANC can’t reform because the hangers on will continue to hang on for as long as they can. My view is that it will take more than one leader, a few commissions and court orders to change the culture of the organisation.

    • Uma Kabanye says:

      Commendable, yes, but too little. It can only strengthen Ace’s case that so many other ANC officials are also facing criminal cases – notably David Mabuza – and they continue to enjoy the party’s favour.

  • John Bestwick says:

    Mr.Phosa. this is why your attempted run as President failed so ingloriously. Lawyer you might be but waffler you definitely are.

  • Hilary Morris says:

    That’s what happens when you go tippy-toe around issues. The ANC is the ultimate at hinting and insinuating but never actually taking a firm position on anything. It’s bloody hard work not offending any faction in the name of “unity”. As though anyone believes the united organisation myth.

  • Dick Binge Binge says:

    “If that is what the law supposes, the law is an idiot and an ass.” Mr Bumble in Charles Dickens’ Oliver Twist.
    A higher degree of morality is expected in democracies. At the hint of wrong doing you resign. You do not bumble along trying to twist the law and obfuscate the facts.

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