This brief analysis focuses on the powers of the secretary-general of the ANC, how these powers fuse with established organisational culture and process, and reveal gaps that are covered through praxis. It notes, between the lines, a few lessons we can learn from previous legal rallies when internal party political powers and antics were paraded in front of the judiciary.
The ANC’s suspended secretary-general in his filed founding affidavit to the South Gauteng High Court claims, probably quite grandiosely, that the secretary-generalship entails that he is in charge of the organisation. He refers to the position as the engine room of the ANC. He likens it to the position of a chief executive officer (CEO). Magashule finds the substantiation for these “executive” functions in rules 16.6 and 25.70 of the constitution of the ANC.
Both rules reveal realities that diverge from “the world according to Ace” — opposing praxis that has been ingrained in the operational culture of the ANC. The powers these rules afford the secretary-general are administrative; they involve communication and coordination; they empower the implementation of decisions that are reached by others.
Rule 25.70, focusing on the specifics of disciplinary action, specifies that the secretary-general acts on the authority of the National Executive Committee (NEC), the National Working Committee, the Provincial Executive Committee or the Provincial Working Committee. The secretary-general of the ANC holds no CEO status, contrary to what Magashule claims. A dip into the history of previous ANC secretaries-general, such as Cyril Ramaphosa and Gwede Mantashe, shows no comparable imaginings of grand power in exercising the secretary-generalship.
The world according to Ace, as captured in his affidavit, relegates the president of the ANC to a secondary not-full-time position, along with the deputy president and national chairperson. Magashule recognises the ANC’s practice of democratic centralism — yet then interprets it one-dimensionally as hierarchical… and places the secretary-general by implication at the top of the hierarchy, a commander-in-chief of the branches of the ANC.
One clause regarding the secretary-general’s position in the hierarchy seems to appeal to Magashule:
“In the absence of the President and the Deputy President, the Secretary General shall assume the functions of the President.”
Rather than a procedural stand-in, Magashule seems to interpret this as him being near the point of presidential succession. If he could have Ramaphosa suspended, it is only the silent fence-sitter DD Mabuza between Ace and the crown. Could Magashule as his next dream-step invoke charges against DD and suspend him as well?
Through a meandering list of clauses in his affidavit, Magashule appropriates the powers to unilaterally suspend the ANC president. As his argument goes, his claims are informed by him being true to the ANC constitution and upholding the supremacy of branches.
Magashule laments the effort “by hook or by crook” to remove him from the “all-powerful position of SG”, adding, “so that the road to the re-election of President Cyril Ramaphosa and his faction in the next National Conference is made easier”. This is the crux of the matter.
On one front, the power of ANC secretaries-general is formidable: they hold far-reaching organisational (and manipulatory) powers over the constitution of ANC branches. The secretary-general, for example, has branch initiation power — to suggest where new branches may be established; branch legitimation powers — to uphold proceedings like branch general meetings that will determine whether the branch may send delegates (and how many) to conferences; and branch gatekeeping powers — ask the ANC’s Gaby Shapiro Branch in Cape Town (one of many examples) about interventions in the run-up to, and at, Nasrec to prevent this pro-Ramaphosa branch from voting. Magashule acknowledges this gatekeeping potential in his affidavit, but then projects that intent entirely on to the Ramaphosa faction.
Branch manipulation and associated manufacturing of conference majorities have been secretary-general and deputy secretary-general practices over multiple ANC top-official and NEC elections. It is these powers that Magashule loses in his state of suspension. They have been given de facto to the office of the secretary-general at Luthuli House.
In my book, Precarious Power, I delve into how the ANC membership and branches have been constructed to facilitate factional victories in internal ANC elections at Polokwane, Mangaung and Nasrec. These powers are internal ANC operational cultures, practices that are in the domain of internal party practices of a voluntary organisation. They stretch beyond constitutional specification and formal mandate.
Magashule has had relatively free rule over branch generation and legitimation in the opaque, high-level lockdown Covid-19 times. ANC membership numbers surged to 1.4 million (from well below a million) with hitherto unspecified, but inevitable implications for the establishment and conference representation of branches. The ANC’s internal membership and branch auditing processes are unfolding as Magashule tries to argue the “extreme urgency” and “national interest” of having him reinstated as secretary-general.
Part of Magashule’s strategy is to present himself as the paragon of non-factional virtue. He indicts the Ramaphosa side for factional intent and practice, but veils that he is the prime factional protagonist personified. The step-aside resolution to which he has now fallen victim, he argues, will spell the end of the ANC — and not of his attempt to further advance possible factional capture of the organisation.
This is one of those cases in the interface between politics and the judiciary where the judges have their work cut out for them — if it is their work to sort out the vexed processes of internal politics and contestation. The ANC and its factions, by now for roughly a decade, have often relied on the courts to solve intractable in-house battles. Members of the Democratic Alliance and the Inkatha Freedom Party have also turned to the courts when it came to disciplinary action and continued membership. Judgments have gone in both directions.
On the opposition party front, the courts ruled in 2018 in favour of Patricia de Lille. It found that the DA’s Federal Legal Commission was supposed to have given her the opportunity to submit evidence in mitigation against the party’s ending of her DA membership. In the 2010 case of Zanele Magwaza-Msibi, the court did not grant her relief against the IFP initiating disciplinary action against her. The judge did, however, recognise the IFP fallout as factional and urged them to find peace.
The South Gauteng High Court, where the current campaign is filed, has overseen an unseemly bouquet of previous ANC cases.
Cases include Judge Fayeeza Kathree-Setiloane in 2019 ruling that Magashule associate Supra Mahumapelo be summarily reinstated as North West ANC chairperson. Advocate Dali Mpofu was one of his legal representatives, as he is now in the case of Magashule.
The KwaZulu-Natal High Court in Pietermaritzburg in 2015 overturned the results of the provincial conference of the ANC in KwaZulu-Natal after branch members took the Provincial Executive Committee to court. The NEC, however, instructed the warring parties in the province to cooperate with each other.
The Eastern Cape ANC reached the conclusion that intra-ANC battles should not become a legal matter.
This analysis indicates that there are many aspects at play in this unfolding case. There are often few clear sets of undisputed and clearly specified rules. Much is in organisational political culture and seeing the contours of the contest. It might seem that there is a clear prevailing reality, but throw in the vicissitudes of legal interpretation and which judge gets called on to preside — and different potential futures await. DM