Magashule got an ‘ample hearing’ even though he didn’t legally require one, ANC lawyer tells high court

25 June 2021 - 15:26 By Franny Rabkin
Suspended ANC secretary-general Ace Magashule was not given a fair hearing by his party, advocate Dali Mpofu argued on Thursday. File photo.
Suspended ANC secretary-general Ace Magashule was not given a fair hearing by his party, advocate Dali Mpofu argued on Thursday. File photo.
Image: Alaister Russell/Sunday Times

There was no legal requirement that Ace Magashule be given a hearing before the secretary-general was suspended, the ANC told the high court on Friday, but he got one anyway.

“He got an ample hearing,”  said lawyer Wim Trengove.

Trengove, counsel for ANC President Cyril Ramaphosa, was addressing the Johannesburg high court on the second day of Magashule’s bid to set aside his suspension and to have the ANC’s “step-aside regime” declared unconstitutional.

Under the step-aside regime, when an ANC member is charged with a serious criminal offence, they should step aside from their position. If they do not, they may be suspended.

On Thursday, Magashule’s counsel Dali Mpofu had argued that the section of the ANC’s constitution that provided for the suspension of those indicted for corruption was unconstitutional because it did not satisfy the requirements of natural justice, in particular the rule of audi alteram partem. This refers to giving the other side a chance to be heard.

However, Trengove argued that the section of the constitution used to suspend Magashule was a precautionary measure and not a disciplinary one.

The section rule 25.70 of the ANC’s constitution says where an ANC office bearer has been indicted on criminal charges, they may be suspended if it is in the best interests of the organisation.

The idea, said Trengove, was to safeguard the interests of the organisation because how could an organisation committed to fighting the scourge of corruption have in its senior leadership someone who had been indicted on corruption charges. 

Trengove cited a judgment from the Constitutional Court that held that where a suspension was precautionary, rather than punitive, there was no need to afford the suspended person a hearing.  

He said even if the court were to disagree and find the suspension provision in the constitution was punitive, there was a long line of cases that required the court to find that a right to a hearing would then be implied in the ANC’s constitution.

Trengove said Magashule was given a hearing by the ANC’s integrity commission.

Mpofu had argued it was not for the integrity commission but for the decision maker to grant audi.

Trengove said in big organisations it was common for the hearing to be conducted by another body and for its findings to then be considered by the decision maker.

Trengove also disputed Magashule’s argument that the ANC’s step-aside regime, as adopted by its Nasrec conference in 2017, had been unlawfully narrowed down by its national executive committee (NEC).

The guidelines adopted by the NEC to implement the conference’s resolutions were a good faith attempt to give full effect to the conference resolutions and they did so, he said.

Under the guidelines, it was not only those who were indicted by the National Prosecuting Authority (NPA) who could be suspended. Others who had been accused of corruption but not yet indicted could also be suspended, but there was an additional process in between to filter the allegations.

Trengove also addressed the “insult” by Mpofu that Ramaphosa and ANC deputy secretary-general Jessie Duarte had been “arrogant” by filing court papers late. They had not breached any rule, said Trengove, and had only filed later what was demanded by Magashule.

The ANC’s attorneys had also informed Magashule’s attorneys collegially that they were working around the clock to get the papers in as soon as they could, he said.