Another blow for Magashule as his court challenge to ANC suspension is dismissed

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Suspended ANC secretary-general Ace Magashule.
Suspended ANC secretary-general Ace Magashule.
Fani Mahuntsi/Gallo Images
  • Ace Magashule's application for a leave to appeal his suspension has been dismissed with costs. 
  • Magashule was also seeking the validation of his own suspension of President Cyril Ramaphosa, which was also dismissed. 
  • The Johannesburg High Court found that there were no reasonable prospects that an appeals court could rule differently

Suspended ANC secretary-general Ace Magashule has suffered yet another blow as his application for leave to appeal his suspension from the party was on Monday dismissed with costs.

Magashule had approached the Gauteng High Court in Johannesburg to appeal a judgment by the same court that was handed down on 9 July, dismissing his application to have his suspension from the ANC deemed unconstitutional and invalid. 

He had sought to submit new evidence not available at the time of his application being dismissed, as well as argue that in their initial judgment the judges demonstrated both actual or perceived bias in reaching their order to dismiss his application, while upholding his own "suspension" of President Cyril Ramaphosa. 

READ: Suspended ANC secretary-general Ace Magashule takes his suspension battle to the SCA

In a strongly worded ruling, the High Court said "there are no political imperatives which influenced" the court's decision, or any "prejudgment" of the issue before the court. 

"We therefore reject the applicant’s contentions that we displayed bias, either actual or perceived, and do not believe that a higher court would come to a different conclusion considered the step aside rule in relation to its content, objective and relationship with the other provisions of the Constitution," reads the judgment. 

Magashule had approached the court to challenged its granting of a condonation application to first respondent Ramaphosa, second respondent ANC deputy secretary-general Jessie Duarte, and third respondent the ANC, for filing their court papers after the allotted time. 

Jessie Duarte Photo: Argief

He did not mince his words, alleging that the judges had "displayed actual and perceived bias".

The application was set down for 1 June 2021, and the notice of motion and affidavits were served on the respondents on 13 May 2021, calling upon them to file their answering affidavits before 16:00 on 20 May 2021. 

Magashule contended that the failure to file the affidavits before the deadline was an "arrogant disregard for the rules of court".  

The court, however, found that the applicant "did not disclose to the Court that on 18 May 2021 and 21 May 2021, the respondents’ attorneys has sent letters to the applicant’s attorneys detailing some difficulties that they had with the time period, and an undertaking to file the answering affidavits by 25 May there was no response to these letters". 

Magashule’s counsel, advocate Dali Mpofu, submitted that the judgment was "littered with a plethora of examples which demonstrated deliberate distortion of the facts and the case of the applicant to the benefit of the respondents, all with the aim of justifying the predetermined outcome by the court".

Dali Mpofu
Magahule's legal representative Advocate Dali Mpofu (Gallo Images)
Gallo Images

In his heads of argument, Magashule set out various examples, which he submitted showed not only perceived bias, but actual bias. He also accused the court of prejudging issues and, "ignoring the facts and the relevant background… for purposes of assisting the respondent in its justification of the approach to the step aside regime". 

He further submitted that the court had distorted the facts to produce a predetermined outcome. 

The court noted: "The accusation of actual bias accompanied by collusive conduct on the part of judicial officers to reach a predetermined outcome is a gravely serious one to make, and while no one should be precluded from advancing such a complaint, the integrity of the judiciary and the judicial system must require that such allegations be adequately supported when they are so advanced."

In its judgment, the court found that the judges had thoroughly analysed each material issue and had come to the conclusions based on the facts and the applicable law. 

The ruling read: 

The fact that the applicant may disagree with the factual findings of the court, even if such disagreement are copious, does not lead to the ineluctable conclusion that the court was biased.

The court found that "none of the decisions that this court made on the various factual issues which decided on were so unreasonable that a perception of, or actual bias, can be shown". 

In its judgment, the court also indicated that it considered the "step-aside rule" was in line with the party’s own policy frameworks.  

Magashule said the court had erred in concluding that the NEC’s step-aside resolution did not amount to a narrowing down, repurposing or amendment of the resolution of the national conference, but the court stood by its initial judgment, saying there was no chance that an appeals court would overturn this.

Magashule’s argument that Duarte did not have the authority to suspend him was again dismissed, with the court adding that it did "not believe that the appeal court would find otherwise". 

Adding more salt to the wound, the court again dismissed Magashule’s own suspension of Ramaphosa, saying that while he had argued that this suspension of the president was done on the authority of the national working committee, there was no truth to this, as he had not been given such a mandate. 

Magashule was suspended by the governing party in May in a letter signed by Duarte, in which the party said that he would be temporarily suspended until the outcome of his legal proceedings.

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