Ace Magashule v the ANC or How not to use the Courts to Settle Political Scores

Introduction

Tomorrow, the ANC’s Secretary-General, Ace Magashule, will approach the Johannesburg High Court in an attempt to render unlawful the ANC’s decision to suspend him. He will also ask the court to approve his own decision to suspend Cyril Ramaphosa.

Approaching courts to settle disputes between members of political parties need not be a cynical misuse of thinly spread judicial capacity. The legal principles that allow courts to settle disputes between members of political parties are grounded in laudable features of our constitutional order. This was illustrated, ironically, by Magashule himself when the Constitutional Court ruled against him in Ramakatsa and Others v Magashule and Others, nearly ten years ago.[1] In that case, the Constitutional Court declared unlawful the ANC’s provincial elective conference in the Free State, on the basis of irregularities in the election of delegates to that conference.[2] In finding against Magashule, the Constitutional Court affirmed three pathways available to members of political parties who wish to approach courts to settle disputes with their party.

The first follows section 19(1)(b) of the Constitution, which provides that “[e]very citizen is free to make political choices, which includes the right to… participate in the activities of, or recruit members for, a political party.” The Constitutional Court interpreted this right broadly, holding that “our Constitution gives every member of every political party the right to exact compliance with the constitution of a political party by the leadership of that party.”[3] Political parties provide an indispensable mode of participation in our democratic system. This broad interpretation of section 19(1)(b) recognises, rightly, that threats to that participation may come from within political parties, as easily as they can come from external actors.[4]The second route departs from the supremacy of our national Constitution and concerns whether a political party’s constitution, apart from whether it is complied with, is itself consistent with it.[5] If a provision of a political party’s constitution is inconsistent with our Constitution, then individual members may approach a court to declare it so. The third route goes via the law of contract. A voluntary association, like the ANC, is established by way of an agreement between itself and its members.[6] The ANC’s constitution, its rules and guidelines all come together to form that agreement.[7] As with ordinary contractual disputes, parties alleging a breach may approach a court for relief.^[8]

Each Of Magashule’s Arguments in Tomorrow’s Matter Are Dealt with Below

Argument 1: The ANC’s National Executive Committee Unlawfully Amended the ANC’s National Conference Resolutions

Magashule’s central argument is that the ANC’s National Executive Committee’s (“NEC”) decision to suspend him under the party’s step-aside rule, impermissibly amended the ANC’s 2017 National Conference Resolutions. The argument’s founding premise is that the ANC’s National Conference, the only body authorised to add or detract from its own Resolutions, originally adopted a step-aside rule that applied broadly to all persons “alleged or reported” to have engaged in corruption. His argument is therefore that the NEC impermissibly narrowed the rule to target only members who were formally charged with corruption, in a cynical attempt to target opponents of Ramaphosa.

The ANC opens its response with a helpful reproduction of the following resolutions adopted at its National Conference in 2017:

Resolution 2: Demand that every cadre accused of, or reported to be involved in, corrupt practices accounts to the integrity committee immediately or face [disciplinary] processes.

Resolution 3: Summarily suspend people who fail to give an acceptable explanation or to voluntarily step down, while they face disciplinary, investigative or prosecutorial procedures.

The ANC argues that the breadth of these resolutions gave the NEC scope to give effect to them in later decisions, with more detail. This it did at a meeting in August of 2020, by distinguishing between various categories of offending members and prescribing a corresponding course of action for each of them. Relevant to Magashule, the NEC resolved that those members “formally charged with corruption or other serious crimes… must immediately step aside from all leadership positions in the ANC, legislatures or governmental structures pending finalisation of their case. If they do not step aside, they must be instructed to do so.”

It is difficult to see how this narrows any commitment envisaged by the above resolutions, especially since Magashule benefited from an opportunity to explain himself to the ANC’s Integrity Commission, instead of being immediately instructed to step aside. The ANC argues that when the Commission’s report came back with a recommendation to suspend Magashule, their National Working Committee (“NWC”) simply implemented that recommendation when it resolved to send letters of suspension to all formally charged members – Magashule included.

Argument 2: The Secretary-General Alone Can Suspend Members of the ANC in Terms of Rule 25.70

Magashule was suspended in terms of Rule 25.70 of the ANC’s constitution. The rule provides for the temporary suspension of ANC members who have been indicted to appear in a court of law on any charge. The suspension is envisaged to take place via the Secretary-General of the ANC, on the authority of the NEC or NWC. The rule clearly gives the Secretary-General a central role in suspension proceedings. That role is reinforced by Guidelines issued by the NEC, which were intended to help the implementation of the step-aside policy. The Guidelines also envisage suspension taking place via the Secretary-General of the ANC, still on the authority of the NEC or NWC, and only when the Secretary General is satisfied that “the temporary suspension of such member… would be in the best interest of the Organisation.”

On Magashule’s interpretation of Rule 25.70, read with the Guidelines, only he is authorised to issue letters of suspension when implementing the step-aside rule. According to this argument, if any power is to shift to the Deputy Secretary-General – who ended up writing Magashule’s letter of suspension – to take over this role, a formal appointment as Acting Secretary-General is required. Despite the logical difficulty of appointing an Acting Secretary-General prior to the suspension of the sitting one, in order to affect the suspension of the sitting Secretary-General, Magashule must overcome the challenge posed by the following Rule of the ANC’s constitution:

Rule 16.9: The Deputy Secretary General shall assist the Secretary General, deputise him or her, when necessary, and carry out the functions entrusted to the Secretary General by the National Conference, the National Council, the NEC, or the NWC and shall be an ex officio member of the NWC.

Given that Magashule would clearly be conflicted when drafting his own suspension letter, the ANC argues that the automatic shift of power to the Deputy Secretary-General to do so fell squarely under this rule. A plain reading of Rule 16.9 seems to work in the ANC’s favour.

Argument 3: Rule 25.70 is Unlawful

Magashule also argues that whatever the court makes of the foregoing, Rule 25.70 is inconsistent with our national Constitution because it offends the presumption of innocence and the rules of natural justice. When Magashule talks of the rules of natural justice, he means his entitlement to a hearing before decisions are taken that finally determine his rights. The ANC responds misleadingly on this score, claiming that the private nature of the contractual relationship between it and its members prevents the ANC from ever exercising public power, insulating it from inconsistency with our Constitution and the demands of natural justice. The Constitutional Court has long recognised, since Barkhuizen v Napier in 2007, that private contractual provisions can offend the Constitution.[9] InNdoro and Another v South African Football Association and Others, the Gauteng High Court found that private bodies may – albeit in limited circumstances – be deemed to exercise public power.[10]

What makes Magashule’s argument weak in this regard, is that the right to be presumed innocent finds application only in the context of criminal proceedings. Rule 25.70 is not part of our criminal law and has no bearing on the outcome of any criminal proceedings. As for the rules of natural justice, the decision to suspend Magashule in terms of Rule 25.70 is temporary by nature. The ANC has exercised nothing like the sweeping private powers relevant in Ndoro and no decision of the ANC has finally determined any of his rights. Indeed, the ANC argues that Rule 25.70 is not part of its internal disciplinary processes. Rather, it serves as a measure to preserve the integrity of the ANC, while members who are accused of crimes clear their names in court.

Magashule also argues that Rule 25.70 is unlawful for inconsistency with the ANC’s own constitution, for similar reasons. He fails here on more elementary grounds, as the ANC points out. Terms in a contractual instrument, like the ANC’s constitution, are more appropriately interpreted in a manner that renders them consistent with the instrument as a whole, than declared unlawful on the basis of inconsistency. Reading Rule 25.70 as existing apart from the ordinary disciplinary processes of the ANC does just that. On this reading, Rule 25.70 needn’t attract the ordinary protections of disciplinary processes – such as rights to appeal and the ANC’s own internal rules regarding fair hearing.

Argument 4: Availability of Internal Remedies

Despite the foregoing, the case may well turn on whether the High Court is the appropriate venue to hear this dispute. A crucial principle emanating from Ramakatsa is that the presence of remedies that are internal to the political party’s own processes, will militate against a court stepping in to make a finding. The ANC argues that there are indeed internal mechanisms available to Magashule that make his approaching the High Court premature. This is because a condition of Magashule’s suspension, appearing clearly at the bottom of his suspension letter, is a six-monthly, recurring review by the NEC of the progress of the criminal proceedings against him. In terms of the condition, Magashule himself may even approach the NEC to ask for a review of his temporary suspension, when his criminal case has suitably progressed.

Argument 5: Who Suspends Whom?

A dispute ancillary to those above is whether Magashule sent his suspension letter to Ramaphosa before he received his own from the Deputy Secretary-General. This is a moment where the old adage ‘first in time first in law’ finds no application. Whatever the true timeline of events, the only legally relevant question here is whether Magashule was empowered by Rule 25.70 to affect Ramaphosa’s suspension. He faces two difficulties in this regard. First, Rule 25.70 only operates against ANC members who have been charged with a crime and, thus, does not apply to Ramaphosa. Second, Rule 25.70 only empowers the Secretary-General to affect suspensions on the authority of the NEC and NWC. On all parties’ versions of events, Magashule was a lone actor in the suspension of Ramaphosa.

Argument 6: Frivolous Charges

Perhaps the most obviously unsustainable claim by Magashule is that the charges against him are frivolous, as they relate only to his failure to properly oversee other “functionaries in the Free State provincial administration.” The ANC took the opportunity to record in stark detail each of the charges against Magashule, leaving little doubt that Magashule has been duly charged with the sort of offences clearly envisaged by Rule 25.70.

Conclusion

It is doubtful whether Magashule’s arguments will hold water, even if it is to be expected that any court will be extremely careful not to create the impression that it is taking sides in what has become an increasingly antagonistic political squabble.

Christopher Fisher
Legal Researcher
christopher@hsf.org.za

[1]Ramakatsa and Others v Magashule and Others (CCT 109/12) [2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18 December 2012)