South Africa

ACE VS ANC

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

Illustrative image | Sources: Suspended ANC Secretary-General Ace Magashule. (Photo: Gallo Images/Darren Stewart) / ANC Deputy Secretary General Jessie Duarte. (Photo: Gallo Images / Netwerk24 / Lulama Zenzile) / President Cyril Ramaphosa. (Photo: Gallo Images / Jaco Marais) / Johannesburg High Court. (Photo: GroundUp / Ashraf Hendricks) | Suspended ANC Secretary-General Ace Magashule. (Photo: Gallo Images/Darren Stewart) / ANC Deputy Secretary General Jessie Duarte. (Photo: Gallo Images / Netwerk24 / Lulama Zenzile) / President Cyril Ramaphosa. (Photo: Gallo Images / Jaco Marais) / Johannesburg High Court. (Photo: GroundUp / Ashraf Hendricks) / Gallo Images / Alet Pretorius

Judge Jody Kollapen, for a unanimous bench, finds that the ANC precautionary suspension clause for members charged with corruption is constitutional.

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

Gallery

Comments - Please in order to comment.

  • Karin Parsons says:

    Justice done.

  • Gerrie Pretorius Pretorius says:

    Just wondering – is mpofu doing this deliberately (for benefit of the eff) or is he just incompetent. jz is not having much better results with this clown as his legal representative.

  • Glyn Morgan says:

    Another one bites the dust!

  • Paddy Ross says:

    Mpofu is not having a good week. Two negative judgements in one day. It would be interesting to know his ‘batting average’ of successful decisions over the last three years. One has to ask what are his qualities that make him an appropriate member of the JSC?

    • Johan Buys says:

      It would be VERY interesting to know who pays the lawyers and advocates of the public protector, prisoner zuma, magashule, soon also niehaus, that woman that messed up SAA, etc, etc.

      Enough public interest for a PAIA application?

      • Robert Russell says:

        Absolutely. his bank account needs to be audited…. receiving payments from the proceeds of crime is illegal in itself. We all know that he only represents big time crooks (albeit badly) …… join the dots and follow the money.

        • Graham Anderson Anderson says:

          His long, waffling and repetitious rendering at the Pmb High Court says it all. His ‘shut up’ at the Zondo Commission is reflective of the obnoxious self esteem he seems to possess. It is time he is taken to task by the applicable Legal Council. He is a disgrace!!!

  • Bruce MacDonald says:

    Heh! heh! heh! heh!
    At least JZ left us something useful.

  • Lee Richardson says:

    Ramaphosa’s “Unity Ticket” involved what looks to be a bunch of convicted criminals. Excellent judgment?

  • Fanie Tshabalala says:

    Who is paying for all these lawyers and all these court cases? Mpofu et al don’t come cheap.

    • Kanu Sukha says:

      Since his pals in the EFF have lost their access to their VBS piggy-bank, Dali had to find another scam to operate – why not as a high paid (but useless) counsel ! He is no dilly dali !

  • Kanu Sukha says:

    Should a counsel that loses on every point of several arguments … not be obliged to hand in their licence to practice law … or alternatively be suspended from doing so ? Surely this is nothing less than bringing the profession into disrepute ?

    • Bick Nee says:

      South Africa has an adversarial legal system, which means that there will always be a loser. You cannot expect legal counsel to be suspended from practicing law because they lost their case. If that were so, we’d have no lawyers left in the country! Also, it is the right of every person to have legal counsel, whether they have a winnable case or not. Have you considered the possibility that maybe it’s not that Mpofu is incompetent but that his clients have cases that cannot be won?

  • Leon Groenveld says:

    Echoing previous sentiments, but: What exactly does ” with costs ” mean here? For Magashule’s personal account? Or the SA taxpayer?
    We know ( do we really?) that Jacob Zuma is now responsible for his own legal fees. He should remain in prison for the rest of his natural life, but, if this truly is the case ( having to pay himself ), he can go on appealing in perpetuity.
    Same goes for Ace. Our lawyers need work. And some fine, upstanding people to pay them.
    And I’m not convinced that for these people consumed by greed a prison sentence would actually be worse.

  • Ediodaat For Today says:

    Just for clarity on the appeal suggested by Ace – if you know the ANC constitution, As Secretary General are you a conduit to communicate any decisions of the NEC eg. “To suspend Ramaphosa” or as SG you make the decision to suspend?

    • Sydney Kaye says:

      Saying the SG could suspend “on his own authority” was a silly claim only a chancer would make. In this case it was even more absurd since Ramaphosa had not been charged with a criminal offence.

    • Dick Binge Binge says:

      Secretary: a person employed to assist with correspondence, make appointments, & carry out administrative tasks. The position is only powerful in that they are privy to all the activities of their employer. In this case the ANC and more specifically the NEC. Some Secretary Generals like other secretaries have delusions of grandeur. They are the gatekeepers.

  • Ian Callender-Easby says:

    Mpofu displays more than a touch of Dunning-Kruger…..

  • Tony Reilly says:

    Brief Mpofu and you are guaranteed to lose with costs 😂

  • District Six says:

    Well, after the way the zuma abused the minority judgement of the ConCourt, every court is going to think twice before any minority judgement comes forth ever again. Watch these pages. Minority judgements are intended to uphold the legal integrity of a court, but after this full frontal assault by the zuma chihuahuas any judge offering one will be a brave judge.

  • Stanley Meares says:

    Mpofu is a pretentious, self opiniated gasbag. When parties like the EFF, the RET and others laud him as the finest counsel in the country then great! Let them continue employing him so they can litigate themselves into oblivion.

Please peer review 3 community comments before your comment can be posted

A South African Hero: You

There’s a 99.7% chance that this isn’t for you. Only 0.3% of our readers have responded to this call for action.

Those 0.3% of our readers are our hidden heroes, who are fuelling our work and impacting the lives of every South African in doing so. They’re the people who contribute to keep Daily Maverick free for all, including you.

The equation is quite simple: the more members we have, the more reporting and investigations we can do, and the greater the impact on the country.

Be part of that 0.3%. Be a Maverick. Be a Maverick Insider.

Support Daily Maverick→
Payment options

MavericKids vol 3

How can a child learn to read if they don't have a book?

81% of South African children aged 10 can't read for meaning. You can help by pre-ordering a copy of MavericKids.

For every copy sold we will donate a copy to Gift of The Givers for children in need of reading support.