Calls for Ace Magashule to step aside as secretary general received a further boost on Saturday, when the national executive committee (NEC) received the recommendations of a committee set up to establish “stand-aside” guidelines when ANC members face damaging allegations of impropriety.
The guidelines were presented to the NEC, the party’s highest decision-making body between elective conferences, by former ANC treasurer general Mathews Phosa. He and former president Kgalema Montlathe were commissioned by the top six leaders of the party to develop the guidelines.
They went into detail, outlining the integrity commission’s role and that of the disciplinary committee.
The Mail & Guardian has seen a portion of Phosa’s presentation, which states that the step aside process and its implementation must abide by the requirements of the party, labour law and the Constitution.
The guidelines said members must abide by the integrity commission’s recommendations.
This has been a particularly thorny problem for the ANC. Some people have refused to stand aside when faced with criminal charges and the matter has become a battleground for the factions vying for power in the ruling party.
The guidelines state that provincial secretaries or the secretary general must table a recommendation in their relevant structure, which then decides how to respond to the integrity commission’s recommendations.
“The recommendation, if it includes an adverse decision against a member recommending that the member step aside or face disciplinary action, must be presented to the member.”
If the secretary or secretary general at the relevant structure decides “after due consideration” that “an appropriate response is to commence a disciplinary process” the “the member must be requested to step aside”, according to Phosa’s presentation.
It goes on to say: “Failing which the disciplinary action shall commence in accordance with the ANC constitution. Should the member refuse to step aside, and considering the recommendations of the IC [integrity commission], the NEC/NWC/PEC/PWC [national working committee/provincial executive committee/provincial working committee] under rule 25.56 may suspend the member pending the institution of a disciplinary process. A disciplinary process shall then follow in accordance with the ANC constitution and with due regard to the member’s substantive and procedural rights under South African law.”
Some NEC members have taken the report as a stamp of approval for calls for members such as Magashule to step aside.
In December, the integrity commission found that Magashule should step aside from his Luthuli House position while facing court action.
He will appear at the high court in Bloemfontein this week along with his co-accused. They have been charged with 21 counts of fraud, money laundering and corruption in the controversial asbestos project in the Free State, where Magashule was premier.
In the past, he has indicated that he would refuse any attempts by the party’s leaders to remove him. During his first court appearance last year, Magashule told his supporters that only branches had the right to ask him to step aside.
The guidelines also state that the step-aside decision may dilute the constitutional rights of a member and must be taken and communicated with due caution for its potential to violate the rights members enjoy under the law.
“The requirement that natural justice at all times be applied when any rights of a member are threatened by any process is a fundamental requirement,” the document reads.
The report states that allegations of corruption must be assessed for quality because members referred to the integrity commission have a right to require that the referral itself be rational, appropriate and commensurate with the standard that was applied to all others in similar situations.
“So in effect, suspending a member or impairing aspects of their membership that would not allow full expression of their rights under clause 19 of the Constitution needs to be executed with great caution and with appropriate rationality. In all instances, this must be done with due regard to all substantive and procedural rights under both the South African and ANC constitutions.”
Phosa argues that the integrity commission would be undermined if it made rulings and the courts came to a different conclusion.
He adds that the commission is best suited to deal with matters requiring clarity about whether someone has committed an offence, external to the organisation or not. He also states that it is not inappropriate for the commission to provide terms and conditions that are applicable to a member’s suspension.
“The inclusion of the IC as a precursor to the disciplinary committee [DC] process is, in effect, a double ventilation of the issues if there is a suspension. So in effect, the substantive issues are heard twice, once in the IC and once in the DC. What happens when the IC recommends that someone must have their membership suspended for the entire duration of their trial, but the DC recommends that the membership of the person continues unaffected?”