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Mervyn Dirks’ case to overturn ANC suspension struck from roll for lack of urgency

25 January 2022 - 16:03
ANC MP Mervyn Dirks' lawyers were pushing for the reinstatement of his membership of Scopa before the committee’s meeting on Tuesday. File photo.
ANC MP Mervyn Dirks' lawyers were pushing for the reinstatement of his membership of Scopa before the committee’s meeting on Tuesday. File photo.
Image: People's Assembly

The Western Cape High Court has struck from the roll, with costs, an urgent application by ANC MP Mervyn Dirks challenging his precautionary suspension.

Judge Andre le Grange said Dirks failed to set forward circumstances that rendered his case urgent, and he could also not state the reasons why he thought he could not get recourse later.

Dirks’ lawyers were pushing for the reinstatement of his membership of parliament’s standing committee on public accounts (Scopa) before the committee’s meeting scheduled for 4pm on Tuesday.

At that meeting Dirks was expected to make his representations on the basis for his complaint and for the committee to decide on the matter.

However, with his membership of Scopa withdrawn, he loses his voting rights in the committee and cannot participate in its decision-making, including on how the committee deals with a complaint he brought before it, argued his lawyer, advocate Nikiwe Nyathi.

Nyathi said ANC chief whip Pemmy Majodina’s placing Dirks on precautionary suspension was not in compliance with the party’s constitution and with the rules of the National Assembly.

She said Dirks would not be afforded any substantial recourse because when the committee meets and votes, he would be without his voting right because of an “unlawful removal or suspension” from Scopa.

“Whatever decision is made this afternoon by Scopa would be by virtue of an unlawful decision made by the office of the ANC chief whip to place him on precautionary suspension,” said Nyathi.

This suspension was unlawful because ANC chief whip Pemmy Majodina was not mandated to suspend an MP.
Mervyn Dirks' lawyer Nikiwe Nyathi

“The reason this was unlawful is because Majodina was not mandated to suspend an MP. Only the ANC national working committee, national executive committee, provincial executive committee or provincial working committee can place an MP on precautionary suspension.

“Anything Scopa does will not be legal, as an illegality has already occurred.”

Le Grange repeatedly suggested Dirks' issues could be ventilated in due course, and said there was nothing stopping him from attending the Scopa meeting at 4pm.

Advocate Thembeka Ngcukaitobi, for Majodina and the ANC, asked for the matter to be struck from the roll with costs.

Ngcukaitobi argued the matter should be struck because the notice was unreasonable and the respondents were given about five hours to respond despite the fact that Dirks had five days since his suspension.

Ngcukaitobi also charged that as an ANC MP, Dirks could simply be removed from the committee according to a view taken by a chief whip of the ANC, who is responsible for the deployment of ruling party members in parliament.

Scopa’s Tuesday meeting was also no basis for urgency as Dirks, as an MP, was entitled to attend and address the meeting, he said.

While Dirks may not have voting rights as a member of Scopa, he has a right to attend and address the meeting, said Ngcukaitobi.

“The absence of his vote will not result in any illegality. It is common cause there are 11 members of Scopa and the absence of a vote of one member will not impact on the legality of the decisions,” he said.

“Decisions of committees of parliament, it’s common ground, are taken by majority and majority is 50% plus one. There will be no shortage of quorum simply because the applicant is unable to attend and vote.”

Ngcukaitobi said Dirks has no right to vote at particular meetings. This was political as decisions are made by the ANC about how it will use its human resources in parliament.

“Today it may elect Mr Dirks should be in Scopa, tomorrow it may elect that he should be in home affairs. That is a party decision.

The mere fact that he complains his one vote will not be counted will not result in any illegality whatsoever.
Advocate Thembeka Ngcukaitobi, for Majodina and the ANC

“If one member elects to go against a party decision, they cannot insist they want to fit in a specific committee. The party makes those decisions.

“The mere fact that he complains his one vote will not be counted will not result in any illegality whatsoever. The decision will be made by the majority vote and the ANC will retain its majority status in that committee.”

Ngcukaitobi said there was a fundamental legal flaw in the argument that the ANC in its party processes acted unlawfully and therefore parliament, which performs a separate function under the constitution, will also act unlawfully.

“That is a fundamental legal mistake.”

Le Grange ruled: “The applicant in my view has failed to show this matter was sufficiently urgent to be enrolled and heard as an urgent application.”

He said it was evident Dirks could obtain substantial legal redress in due course.

“It follows the application needs to be struck from the roll for the lack of urgency, with costs.”

Majodina removed Dirks from his positions in parliament — as a member of Scopa, from the ANC’s strategy committee and as its questions whip in the National Assembly — after he ignored her instruction to withdraw a request to Scopa to summon President Cyril Ramaphosa to answer allegations that state funds were used for party political activities.

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