The ANC National Executive Committee (NEC) meeting on Sunday was again dominated by infighting of the two factions. In a virtual conference designed to discuss the party's renewal and preparation for the 2021 local government election, the first session was overshadowed by legal opinions on whether ANC Secretary General Ace Magashule should step down from his position following his arrest last month and ANC NEC member Pravin Gordhan’s admission that he was a part of the creation of the controversial Sars rogue unit.
Magashule's backers did not spare Gordhan, calling on Ramaphosa to fire Gordhan with immediate effect. NEC member Bongani Bongo was again the most vocal.
"Why do you not fire Pravin? Any confession of a rogue unit is illegal. Is any other country he would be arrested. But people will be arrested for lack of oversight when those who are not arrested," Bongo told Ramaphosa.
In August, ANC president Cyril Ramaphosa penned a letter in which he told members who had been formally charged with corruption and “other serious crimes” to immediately step aside from the party, legislature and government leadership positions pending the finalisation of their cases. Ramaphosa however faced a battle because his close ally Speaker of Parliament Thandi Modise is facing criminal after after she allegedly abused and starved animals at her farm.
Following his appearances before the Bloemfontein Magistrate’s Court where he was formally charged with fraud and corruption, Magashule defied the call to step aside, telling his supporters only the ANC branches that elected him had the prerogative to tell him to step aside.
Ramaphosa’s supporters are said to be rallying behind moves to get Magashule to step aside but if that happens Magashule's support base will call for an early conference. A source in the NWC(National Working Committee) told Independent Media that if Magashule was recalled, the entire top six would collapse.
"If Magashule steps aside, we will have to go to a early conference to decide on a new leadership. The SG was elected as part of structure. There has never been the election of only an SG. If Magashule isn't good enough, we will elect a new leadership. The same way we did at Nasrec,“ the source revealed.
With legal opinions already placed before the NEC, the body is expected over the coming days to decide on the way forward.
In his legal opinion advocate Mashudu Tshivhase said if any structures required the removal of any of its elected leaders the views of the individual members who elected the leadership of their choice could not be easily disregarded as this was not a master and servant relationship or an employer and employee relationship.
“The ANC NEC should consider getting the views of those individual members and, or, branches which nominated and elected any leader, which according to the other members of the NEC, hold a view that such a leader needs to voluntarily step down.
“An elected leader cannot be removed on account of any other person’s pleasure, disregarding the rights of those who elected such a leader to office. Democratic process is an inclusive process, rights which individuals hold can not be easily ignored, irrespective of the circumstances,” argued Tshivhase.
In another legal opinion by Phosa Loots Incorporated Attorneys, the law firm of former ANC treasurer-general Mathews Phosa, it argued that the suspension of any member of the party would be unlawful if the suspension is not an intrinsic part of the disciplinary process under the ANC constitution.
Another legal opinion, this time by advocate Dali Mpofu, who argued that calling on leaders charged with corruption to step aside was invalid and unenforceable as this constituted an infringement of members’ rights as it went against their constitutional right of being presumed innocent until proven guilty.