In the latest court papers filed in his legal battle with the ANC, Ace Magashule declares that not only did the party’s national working committee (NWC) lack the power to sanction his suspension as secretary general of the party, it jumped the gun while he was considering stepping aside.
“I have never refused to step aside,” he says in papers filed in reply to the answering affidavits of the ANC, President Cyril Ramaphosa and deputy secretary general Jessie Duarte filed last month.
“I was prematurely suspended before being given a proper and due opportunity to make and communicate a decision one way or the other.”
He had planned to table his decision at the party’s special national executive committee (NEC) meeting which was eventually held from 8 to 10 May, he says.
On 3 May Duarte sent a letter informing Magashule that he was temporarily suspended. He has asked the high court to overturn his suspension but to rule that his own attempt, on the same day, to suspend Ramaphosa was binding in law. Should the court agree, the president should apologise to him, he submits.
He argues that the ANC misconstrued the rule used to suspend him as well as the facts surrounding his suspension.
But first he dismisses Duarte’s insistence, in her reply to his application to have his suspension overturned, that rule 27.5 is in line with the Constitution, and then argues that she lacked the required authority to act against him.
He submits that the latest version of the ANC’s step-aside guidelines for those implicated in corruption is a “narrowing” of the resolutions the party adopted at its 54th conference, under which all members implicated in graft must step aside. This was done to selectively target himself and others in a factional purge, but the NEC lacks the power to rewrite the rules.
Magashule says if the court accepts his argument that the rule is unlawful, then it follows that his suspension must be set aside.
But he argues that if it were to stand, his suspension was done in such a manner as to constitute “glaring noncompliance” with the requirements of the rule.
He stresses that the power to suspend rests with the secretary general, who must act on the authority of the NEC.
He argues that Duarte lacked a mandate she sought to notify him of his suspension, and her submission that she was authorised to do so by a resolution of the NWC is factually incorrect. Neither is her reliance on rule 16.9 as enabling her to carry out the same functions as the secretary-general corect, he says.
“Clearly the notion that the first respondent deputises the secretary general is lost on her, as is the meaning of that word,” he writes.
“The DSG [deputy secretary general] cannot suspend a person more senior than her, unless she was specifically authorised to do so, which she was not.”
Magashule says the respondents tried to remedy the unlawfulness of his suspension after the fact by claiming, as an afterthought, that the NWC had deemed it in the best interests of the ANC. He says he was at the NWC meeting in question and nothing of the sort happened.
Furthermore, he adds, the party never gave him an opportunity to show why he should not be suspended and this violates the Constitution of the country and that of the ANC. He says in as far as the step-aside rules have been applied to him, but not to others also implicated in graft, his constitutional rights to fairness and dignity have been flouted.
In her papers Duarte rejected Magashule’s argument that he was the only person who held powers to suspend him, saying his interpretation of the ANC constitution was “clearly absurd”.
She similarly rejected Magashule’s claims he was targeted for being part of a faction.
Magashule also accuses the respondents of failing to deal with several legal principles and statements of fact he put forward in his founding affidavit, and warns that this could prove fatal in court.
“I am advised that it will be argued that the significance of the failure to deal with these and other issues ought to be fatal to the respondents’ case, in that the court will have no basis to reject the applicant’s legal contentions,” he submits.
Likewise, where the respondents failed to answer his version of facts and events as these played out around his suspension, or did so only with bald denials, the court should accept his account as common cause.
A full bench for the high court in Johannesburg is set to hear the matter on 24 June.
Ramaphosa has dismissed Magashule’s bid to suspend him as vengeful.
Magashule disputes this and insists the powers vested in him by the ANC constitution, including those of suspension, “have the force of law” and the resolutions adopted at the Nasrec conference empowered him to suspend anybody accused of corruption.
He further argues that to be lawful and in line with the resolutions, rule 27.5 would have to be amended to all those so implicated, and not just members indicted in a court of law.
Such a rewording of the rule would mean that Ramaphosa, plus allies such as Deputy State Security Minister Zizi Kodwa, would also have to step aside.
In the case of the president, Magashule says the ANC cannot avoid dealing with his “confession” to the Zondo commission that R300-million was raised to bankroll his campaign to win the ANC leadership contest at Nasrec, because using money to vie for power is in violation of the party’s principles.