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

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Ace Magashule this week dragged the National Prosecuting Authority (NPA) to court to force it to hand over the complete docket of his criminal case.
Ace Magashule this week dragged the National Prosecuting Authority (NPA) to court to force it to hand over the complete docket of his criminal case.
Alet Pretorius, Gallo Images
  • Ace Magashule is appealing a Gauteng High Court judgment that upheld his suspension as the party's secretary-general.
  • A full Bench ruled that the ANC's step-aside rule, which formed the basis of his suspension, was constitutionally sound.
  • But Magashule says the court got it wrong. 

Suspended ANC secretary-general Ace Magashule has filed a notice of his intention to appeal a Gauteng High Court judgment that upheld his suspension.

News24 has seen the 14-page application which was signed on Friday and filed in the Supreme Court of Appeal. President Cyril Ramaphosa, deputy secretary-general Jessie Duarte and the party are respondents in the matter.

READ | Magashule to appeal court judgment upholding his suspension from the ANC

In his appeal, the embattled secretary-general argued that the High Court in Johannesburg made multiple errors when it upheld his suspension.

Magashule said the court got it wrong and he maintained his belief that the party's step-aside rule was unconstitutional.

He was suspended on the basis of the step-aside rule after he was criminally charged in connection with a multimillion-rand Free State asbestos eradication tender.

Earlier this month, a full Bench found that his suspension was valid and found that the step-aside rule was constitutionally sound.

Reading out the judgment, Judge Jody Kollapen said: "He (Magashule) participated in all the processes relating to the development, formulation and adoption of the resolutions of the 54th national conference regarding this matter, including the resolutions of the NEC (national executive committee) that resulted in the formulations of the guidelines on the implementation of the step-aside principle."

The court also ruled that Magashule's attempt to, in turn, suspend Ramaphosa in his capacity as the party's president had no merit. 

Perceived bias

But, in his court papers, Magashule argued that the judgment was "littered" with countless examples of perceived bias from the court and said it contained distortions and misrepresentations of arguments he made.

He submitted that the court failed to say how all jurisdictional requirements of the step-aside rule were met.

"The court erred in failing to answer the question whether and how all the jurisdictional requirements of Rule 25.70 (step-aside rule) were met, failing which the suspension could not conceivably be lawful."

He also stated that after the court accepted that the step-aside rule formed part of the chapter in the ANC's constitution that dealt with "management of organisational discipline", it should have considered the rule in its proper context.

It was "completely incorrect" to conflate the issue of the objective constitutionality of the step-aside rule with the facts of the case, he submitted.

Magashule also argued that the court erred by failing to recognise the principle that constitutional rights could not be waived. 

"Even if Mr Magashule had stated that he would comply with the lawful application of the step-aside rule, he could not thereby be forfeiting his right to challenge their unlawful invocation."

Ignored wording

He said the judges "ignored" the wording of the national conference resolutions and failed to compare and contrast them with the NEC's resolution.

Turning to Duarte's involvement in his suspension, he said there was no evidence to show why Duarte took it upon herself to suspend him. 

Ramaphosa

Magashule said the judges were wrong to state his suspension of Ramaphosa was unlawful without explaining this. 

He said the High Court failed to say whether Ramaphosa's suspension was conducted in terms of the real step-aside rule and by an authorised person acting in "good faith".

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