EXCLUSIVE: Leaked legal opinion states it is unconstitutional for Ace Magashule to step aside

Picture Courtney Africa/African News Agency(ANA)

Picture Courtney Africa/African News Agency(ANA)

Published Dec 5, 2020


Durban - Former ANC treasurer general and respected ANC stalwart Dr Mathews Phosa wrote an 11-page legal opinion letter to ANC secretary general Ace Magashule where he concluded that it was unconstitutional for Magashule to step aside.

In the letter, leaked to the Daily News titled “The obligation to step down”, Phosa said the suspension of any member would be unlawful if the suspension was not an intrinsic part of a disciplinary process under the ANC constitution in clause 25, (which refers to the management or organisational discipline) and in full compliance therewith.

The letter comes after internal and external calls to step down from various positions within the ANC, in light of charges against Magashule.

The letter also came ahead of the ANC’s three-day national executive committee (NEC) meeting which starts on Sunday.

In his letter, Phosa said that prompted a review of the procedural and substantive requirements for a legal process to be followed in said circumstances.

His letter was an “examination of the current status taking into consideration the Constitution of the ANC”.

Phosa said the question was whether a party member must step down from his position voluntarily or in the alternative can be forced to step down, and in the event that he is forced to step down, what is the legal position with respect to the procedural and substantive requirements of such a process?

Another question was which particular institution in the ANC is the appropriate forum for initiating and prosecuting any such procedure to deal with the matter facing the organisation.

“The voluntary relinquishment of a position in an organisation such as the ANC, whether intrinsic to the person or on the basis of advice or pressure from external or internal sources is primarily a political and moral question that does not fall within the scope of this advice,” said Phosa.

He said the simple exposition of the law is therefore that the ANC is required to always act lawfully, that being, in accordance with its constitution, as the participation in its activities by any of its members constitutes the fulfillment of their constitutional right to participate in the activities of a political party. Once membership is attained, an agreement is established that has duties and obligations for both parties that must occur within the context of South African law and the ANC constitution.

Going back to the question he posed, Phosa said the ANC constitution and its instruments create a conundrum when applied to its specific circumstances.

“On the face of it, the resolution taken at the 2017 National Conference, itself a restatement of the 2015 NGC resolution, is the applicable instrument to be applied in the circumstances in the Question, which reads as follows:”

“Re-affirm the 2015 NGC resolution that, ANC leaders and members who are alleged to be involved in corrupt activities, should, where necessary step aside until their names are cleared”

This was followed with an NEC resolution published on 31 August 2020 that reads: “Cadres of the ANC who are formally charged for corruption or other serious crimes must immediately step aside from all leadership positions in the ANC, legislatures or other government structures pending the finalisation of their cases”

This is enhanced by a resolution that reads;

“Summarily suspend people who fail to give an acceptable explanation or to voluntarily step down while they face the disciplinary investigative or prosecutorial procedures”

The resolutions also included:

“Cadres of the ANC who are reported to be involved in corrupt and other serious criminal practices must go to the Integrity Commission to explain themselves. Those who do not give an acceptable explanation, must be suspended”.

Phosa said while the definition of “step aside” is not clearly laid out anywhere, the language in context suggests that the person who is the subject of these processes should absent themselves from all activities and appears to be a codeword for a voluntary self-executed suspension. If anything, more than that is intended by the phrase “step aside”, it would violate the ANC constitution and any action instituted under such an expanded definition, would be open to being set aside.

The applicable resolutions passed at the 54th National Conference were passed as ordinary resolutions. They were not passed, according to the information available to the author, on 3 months’ notice to the Secretary General nor were they constitutional amendments submitted by the NEC on one month’s notice, with a clear notice of intent to propose constitutional amendments and passed by a two thirds majority in the National Conference.

These resolutions referenced above, various statements by officials, the NWC and the NEC have reiterated the belief that anyone, not complying with such statements would be summarily suspended. There does not appear to be any process that had in fact amended the constitution to either empower those resolutions or statements beyond the mere “step aside” definition alluded to above.

As a result, thereof, what is open to the organisation to do is to follow its constitution and act in accordance therewith. Any action that does not comply with the constitution of the ANC would be unlawful. It is the founding element of the agreement between the organisation and its members. No resolution or statement of any of the institutions inside the ANC is capable of overriding the constitution and subtracting from the basket of procedural and substantive rights that are held by an ANC member. Only a duly processed constitutional amendment has the ability to change those rights.

Phosa goes on to discuss the role of Revolutionary Morality, who the ANC is, including its aims and objectives and the responsibilities of an ANC member (the values and principles of an ANC member and what is expected of them).

He also explores that the ANC amended constitution contains further matters of interest to the question he posed earlier.

He said they are: Natural justice as a concept in line with the primary procedural safeguards in South African administrative law are expressed by the twin principles of natural justice: audi alteram partem (“the audi principle”) and nemo iudex in causa sua that is, that a public official should hear the other side, and that one should not be a judge in his own cause get attention in the definitions of the amended ANC Constitution and is quoted verbatim as “natural justice rules” means the rules that no one can be a judge in his/her own cause, and one should be given the opportunity to be heard”.

Phosa said discipline occured in a number of instances in the constitution of pertinence to the question raised:

In rule 5.2.7 as one of the duties of members as obliged to “Observe discipline, behave honestly and carry out loyally the decisions of the majority and decisions of higher bodies;

In terms of rule 25.3 Any member, office bearer or public representative who fails, refuses and/or neglects to abide by the provisions of the Constitution of the ANC, its Standing Orders, Rules, Regulations, Resolutions and policies adopted or made in terms of the Constitution shall be liable to be disciplined in terms of this Constitution.

The organisation’s authority to discipline is found in rule 25.4 The ANC shall have jurisdiction to discipline any member, office bearer or public representative for committing any act of misconduct as contained in Rule 25.17 below as a member of the ANC and/ or by virtue of his or her contract of deployment and/or by virtue of his or her membership of any of the structures of the ANC.

In terms of rule 25.6 Disciplinary proceedings against a member shall not:

Be used as a means of stifling debate or denying members their basic democratic rights;

In terms of 25.11 Disciplinary proceedings in the ANC shall be a one-stage inquiry and shall be conducted in terms of the procedure set out in Appendix 3. All the evidence regarding the merits of the case and all evidence relating to an appropriate sanction shall be led by the parties before the Disciplinary Committee retires to adjudicate and make its finding.

One finds the reference to the rules and powers of the NEC relating to suspension from office in the following rules:

25.56 The NEC, NWC, PEC or PWC, as the case may be, may, at any stage prior to the commencement of disciplinary proceedings against a member summarily suspend the membership of that member in accordance with the provisions of this Rule.

25.57 Before making such a decision, the NEC, the NWC, the PEC or the PWC, as the case may be, shall:

25.57.1 Have due regard to the nature and seriousness of the alleged violation or act of misconduct;

25.57.2 Consider the likelihood of the member engaging in further acts of misconduct;

25.57.3 Consider the impact on the repute of the Organisation of the alleged violation or act of misconduct and/or further acts of misconduct that the member could engage in;

25.57.4 Put the accusations to the member for comment;

25.57.5 Afford the member 48 (forty-eight) hours to respond to the accusations.

Phosa said the rules were in stark contradiction to the resolution contemplating “summary suspension” as alluded to hereinbefore.

The majority of the statements and resolutions referred and alluded to above relating to stepping aside and summary suspension are generally de-contextualised from a disciplinary process and appear to be used in a stand-alone context as a means and end to itself. This is obviously not in compliance with the provisions of the ANC constitution.

Phosa also said there was confusion with respect to “suspension”.

“The definition of “suspend” in the ANC constitution reads as follows:” suspend” means to bar for a period of time access to a privilege, office or position”. When the various statements, resolutions and publicly shared perspectives on the issue of suspension and stepping aside in instances of misconduct are collectively assessed, they lead to the unavoidable conclusion that many of these are not predicated on a proper understanding of suspension in the context of the ANC constitution. There is no instance in the ANC where a body or office bearer is empowered to institute a stand-alone suspension, with one very specific exception dealt with below and one instance contained within the general powers of the NEC. All other instances of suspension in the ANC constitution fall into 2 broad categories. The first category is that of a suspension prior to a disciplinary process, as the initial stage of a disciplinary process, and the second category is a suspension as a sanction after a process has resulted in someone being found guilty. None of these have yet come to pass,” said Phosa.

He said the only exception was the general power to temporarily suspend a member’s membership set out in Clause 12.2.12. In this context the definition of suspend does not have application, as it specifically refers to the total denial of any of the rights of membership, as against the partial constraint of the benefits of membership contemplated in the definition of “suspend”.

This power is not defined in either a procedural or substantive rights context and in effect gives the NEC the power to suspend the constitutional right of a member to participate in the activities of a political party that is laid out in Ramakatsa.

It is likely that the unfettered exercise of a power to temporarily suspend the constitutional rights of a member is unlikely to pass constitutional muster if challenged. The other exception is the provisions of clause 25.70 of the ANC constitution.

The clause reads as follows:

“Where a public representative, office-bearer or member has been indicted to appear in a court of law on any charge, the Secretary General or Provincial Secretary, acting on the authority of the NEC, the NWC, the PEC or the PWC, if satisfied that the temporary suspension of such public representative, office bearer or member would be in the best interest of the Organisation, may suspend such public representative, elected office-bearer or member and impose terms and conditions to regulate their participation and conduct during the suspension.”

Daily News

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