Suspended ANC secretary-general Ace Magashule will not be apologising for suspending Cyril Ramaphosa as president of the party; instead he wants the court to affirm that his decision was “valid and effective until lawfully nullified”, and therefore he should not be forced to apologise.
In court papers that Magashule served on Luthuli House on Thursday, he also seeks a court order declaring the step-aside rule of the party and the clause in the party’s constitution used to suspend him to be declared “unlawful, unconstitutional, invalid, null and void”.
The letter of suspension he received from his deputy, Jessie Duarte, should be set aside for the same reasons. The court has also been petitioned to reinstate Magashule to his post.
The respondents are cited as Ramaphosa, Duarte and the ANC.
Magashule’s suspension followed a decision last November by the National Prosecuting Authority to charge him with fraud, corruption and money laundering, and the ANC reasoned that his time away from office until he was cleared would protect the image and reputation of the party.
“Given the nature of the issues and the identities and public roles of all the parties, the outcome of this application will have a huge and profound impact on the public interest, going right up to the highest office in the ruling party and the state,” Magashule said.
Therefore, he did not anticipate that the respondents would argue against the matter being heard urgently or semi-urgently.
“I will also propose to the respondents that it is in the interests of certainty and the organisation that the issues raised herein be ventilated and determined speedily and that, as such, the honourable deputy judge president of this honourable court be jointly approached to allocate this matter specifically and expeditiously to be heard either by a single judge or preferably by the full court, and to implement related logistical arrangements for the hearing.”
Failing such agreement, he said “the matter will be placed on the urgent roll in line with the applicable rules of court, as outlined in the notice of motion”.
Magashule submitted that, in terms of the hierarchical structure of the ANC, no other structure could lawfully contradict, vary or rescind the decisions or resolutions of the national conference.
He said that, while the national executive committee (NEC) was the highest decision-making structure between national conferences, “the NEC does not have the same powers as the national conference to amend the constitution of the ANC or to change the name and/or colours of the organisation or the size or terms of office of its NEC and many other matters”.
At the national conference in Nasrec in 2017, the delegates took a resolution that “every cadre accused of, or reported to be involved in, corrupt practices accounts to the ANC integrity committee immediately, or faces disciplinary processes”.
It also endorsed the resolution of the national general council in 2015 that “ANC leaders and members who are alleged to be involved in corrupt activities should, where necessary, step aside until their names are cleared”.
Magashule said he relied on these resolutions to suspend Ramaphosa, and the fact that his letter suspending Ramaphosa was not given any effect was due to “selective justice, according to who belongs to the dominant faction”.
“The suspension letter of the president ought to be declared valid unless properly and procedurally set aside, because the conduct of the first respondent falls squarely within the ambit of the real and original conference resolution.”
He said Ramaphosa had failed to give a satisfactory explanation to the integrity commission, and the relevant integrity commission report, which would bear this out, was available but would only be included in the replying affidavit in the event of a denial.
“The decision was never appealed; he has publicly and under oath admitted to his CR17 campaign having used a minimum of R300 million in order to secure his election into the ANC presidency at the 2017 Nasrec conference.”
He continued: “In his case, therefore, one is not even only dealing with allegations but with an admission; the conference resolution specifically includes “those who use money to influence conference outcomes”; he has failed to step aside; and the suspension letter was officially signed and sent by the secretary-general of the ANC.
Magashule said that he specifically disputed the lawfulness of the instruction that he should apologise for what was “a bona fide exercise of my responsibilities as instructed by the NWC [national working committee], irrespective of my own known private views at the time about the regularity of the step-aside regime”.
“Nor do I carry any obligation to carry out what is an unlawful instruction according to my conscience. I can only genuinely tender such an apology if this honourable court declares that, despite what I have explained, it is warranted in the circumstances, which I dispute. Any apology issued by me before legal clarity is given by this honourable court would not be genuine or meaningful.”
He said the suspension letter of Ramaphosa was written on May 3, at a time when he was still entrusted with the tasks referred to in the ANC constitution.
“Even if it were to be ultimately found by this honourable court that the suspension letter to the president was indeed somehow unlawful or unauthorised, that cannot conceivably justify the unlawful manner in which the whole issue was clearly handled.”
He said the matter should have been tabled and debated at the recent NEC in Ramaphosa’s absence.
“What actually took place in relation to this issue would rival the conduct of the worst dictatorships ever witnessed on this planet. It can never be condoned in a democracy of any description,” Magashule said.