Suspended ANC secretary-general Ace Magashule suffered a huge blow when the Johannesburg High Court ruled that the ANC constitution is consistent with that of the country and that the decision to suspend him was effected in terms of the ANC constitution.
Reading the judgment by the full bench in the Johannesburg High Court, Judge Jody Kollapen also found that Magashule had unlawfully suspended President Cyril Ramaphosa.
Both Judge Edwin Molahlehi and Judge Sharise Weiner concurred in a unanimous judgment that found that Magashule was also given sufficient opportunity to state his case in opposition to the step-aside rule and therefore it could not be argued that he was denied the right to be heard.
The court found that Magashule’s suspension under rule 25.70 of the ANC constitution was precautionary and not punitive as he had argued in court. The ANC relied on the rule to ask Magashule to step aside pending the conclusion of his criminal trial on charges of fraud, corruption and money laundering.
In turn, Magashule argued that the rule was unconstitutional and inconsistent with other parts of the ANC’s disciplinary codes to the extent that it did not provide for the right to make representations and to appeal.
In Ramaphosa’s case – that he allegedly raised money to buy votes at the ANC’s last national conference in Nasrec under the banner of CR17 – the court found that he was not indicted and therefore the mandatory requirements to trigger rule 25.70 did not exist.
“There was no basis to confirm the purported suspension of Ramaphosa, [as] we pointed out that the mandatory requirements to effect such as suspension in terms of rule 25.70, among them that he be indicted, were absent. There could therefore be no basis to activate rule 25.70 as Magashule purported to do in support of his decision to suspend Ramaphosa.”
Kollapen said it was clear that the ANC recognised “the nature and the extent of corruption, and its impact on society, [which] triggered the need for decisive action by the party on that score”.
He said that the call for decisive action “resonates with the objectives of the ANC as set out in its constitution, in particular the commitment to social justice and the elimination of inequality”.
Secondly, he said, the important associational and participation rights found in the Bill of Rights created the necessary space for the governing party to bring together its leadership and members in the pursuit of a common vision and common objectives.
“In doing so, the ANC, through its constitution, created the model and mechanisms best suited to its structure and needs, provided that such a model, evidenced by the ANC constitution, is consistent with the Constitution of South Africa.”
Further, Kollapen said, “provided that the ANC is loyal to its own constitution, it is largely left to the ANC to best regulate its internal functioning”.
“This is what all members of the ANC sign on to when they elect to be part of the ANC and this is the glue ... that binds them together. It is a choice the court must respect within the limits we have described.”