Legal opinions differ over asking ANC members to 'step aside'

04 December 2020 - 06:00
The 'step-aside' issue has become a hot potato for the ANC, as some of the party's top leaders facing criminal charges refuse to leave their positions, temporarily or otherwise. These include secretary general Ace Magashule.
The 'step-aside' issue has become a hot potato for the ANC, as some of the party's top leaders facing criminal charges refuse to leave their positions, temporarily or otherwise. These include secretary general Ace Magashule.
Image: Simphiwe Nkwali

Lawyers will play a crucial role in whether corruption-accused ANC leaders — including secretary-general Ace Magashule — will have to step down.

Conflicting legal opinions on whether the party can remove leaders who are charged with corruption are expected to ignite heated debate at the weekend’s national executive committee meeting.

Ahead of its last NEC meeting of the year, the ANC sought legal advice on how members facing criminal charges or alleged wrongdoing can step aside from their official duties.

TimesLIVE understands that there were four legal opinions sought from top legal minds in the country, including the ANC’s long-time lawyer, advocate Gcina Malindi, former ANC treasurer-general Mathews Phosa, advocate Mashudu Tshivhase and Tembeka Ngcukaitobi.

Two of the legal opinions TimesLIVE has seen — by Phosa and Tshivhase — advise the party against forcing any of its members to step aside, while News24 reported that Malindi gives the ANC the go-ahead to ask members to step aside.

The “step-aside” issue has become a hot potato for the ANC, as some of the party's top leaders facing criminal charges refuse to leave their positions, temporarily or otherwise. These include Magashule and NEC member Bongani Bongo, who chairs the home affairs portfolio committee.

These legal opinions are expected to be debated at length at the NEC’s three-day meeting, taking place virtually between Sunday and Tuesday.

Advice from Phosa’s law firm, Phosa Loots Inc, has cautioned the ANC against taking any action against members accused of wrongdoing, saying that anything beyond the accused person voluntarily stepping aside amounts to a suspension, which it said was unlawful.

The advice from Tshivhase is that ANC branches must be consulted before any decision to remove, suspend or ask any member to step aside is taken.

According to Phosa Loots Inc, there is no instance in the ANC where a body or an office bearer is empowered to take a decision to suspend anyone — with the only exception being that the party has general power to “temporarily suspend” a member’s membership as it is not clearly defined and seems to give NEC powers to suspend a member from all party activities.

They do, however, caution that this will not stand up in court should it be challenged.

The law firm also suggests that the rules in the ANC constitution guiding what action should be taken against members and by whom are in “stark contradiction” to the resolution on temporary suspension.

“The majority of the statements and resolutions referred and alluded to relating to stepping aside and summary suspension are generally decontextualised 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,” the law firm advised.

It concluded that “the suspension of any member would be unlawful if the suspension is not an intrinsic part of a disciplinary process under the ANC constitution in clause 25 and the Annexes, and in full compliance therewith”.

“None of the resolutions, statements and policy postures have the legal effect of creating a sui generis standalone process for suspending a member under the circumstances now being experienced,” it said.

Tshivhase says the constitution seems to give the NEC, the national working committee (NWC) and the provincial working committee (PWC) power to take such a decision — but cautions that whatever decision that structure takes, it will most likely set it “on a collision course with 90% of delegates from branches”.

“Moreover, if any of the structures requires removal of any of its elected leaders the views of the individual members who elected the leadership of their choice cannot be easily disregarded as this is not a master and servant relationship, or employer and employee relationship,” Tshivhase says.

Tshivhase said stepping aside was a voluntary act and that an elected cannot be forced to resign or step aside and that though “the are resolutions taken that a leader should voluntary step down no legal obligation can be imposed to such leader to step aside”.

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