Magashule v Ramaphosa and Others (2021/23795) [2021] ZAGPJHC 88; [2021] 3 All SA 887 (GJ) (9 July 2021)

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[2021] ZAGPJHC 88
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Magashule v Ramaphosa and Others (2021/23795) [2021] ZAGPJHC 88; [2021] 3 All SA 887 (GJ) (9 July 2021)

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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2021/23795
In
the matter between:
ELIAS
SEKGOBELO MAGASHULE
Applicant
And
CYRIL
RAMAPHOSA
First
Respondent
JESSIE
DUARTE
Second
Respondent
AFRICAN
NATIONAL CONGRESS
Third
Respondent
JUDGMENT
KOLLAPEN,
WEINER and MOLAHLEHI JJ
Introduction
[1]
The dispute before this Court traverses a diverse range of legal

issues which are set against a complex and detailed background. In
essence, however, the dispute revolves around three broad
imperatives:
the common cause recognition by the parties of the scope
and impact of corruption on the African National Congress (ANC) and
the
expressed need to act decisively against it; the recognition of
the associational and political participation rights of the parties

to the litigation and how those are deployed to achieve the vision
and the objectives of the ANC; and the acceptance that the ANC
must
act consistently with its own constitution (the ANC constitution) and
the Constitution of South Africa, and broadly in accordance
with the
values and the rights enshrined in it and in the spirit of fairness.
[2]
Whilst it is not a condition precedent for the effective functioning

of a democratic society, it is difficult to imagine a democracy
without political parties. They are often the structures through

which citizens express their right to political participation; the
expression of their hopes and aspirations; their fears and
uncertainties; and the articulation of the future they desire for
themselves. In
My Vote Counts NPC v Speaker of the National
Assembly and Others
, Cameron J stated:
“
The
founding premise of the applicant’s argument is the unique role
of political parties in our constitutional democracy.
This is
difficult to dispute. The electoral system the Constitution creates
pivots on political parties and whom they admit as
members. In
the
First Certification
judgment, this Court noted
that, ‘[u]nder a list system of proportional representation, it
is parties that the electorate
votes for, and parties which must be
accountable to the electorate.’
Our
constitutional order places the key to elective office and executive
power in the hands of political parties. Members of the
National
Assembly and provincial legislatures are not directly elected. Nor is
the President or the Deputy President. The same
applies to provincial
and national executives. Under the current electoral system, it is
political parties, and parties alone,
that determine which persons
are allocated to legislative bodies and to the executive. …”
[1]
[3]
In broad
legal characterisation, a political party is a voluntary association
where the relationship between the party and its members
is regulated
by contract, admittedly of a unique nature.
[2]
In other respects, political parties live in the public consciousness
of a society as their work is so fundamentally public in
nature and
is, at least theoretically, meant to be aligned to the public good.
[4]
The case before us is about a dispute within the ANC, the largest

political party in South Africa. While in many respects it is a
private dispute between members of a private organisation, in so
many
other respects it triggers questions about the scope and reach of our
constitutional and legal order, suggesting that the
line between
privately exercised power and rights and publicly exercised power and
rights cannot and should not be rigidly drawn
and maintained –
particularly in a constitutional democracy described as, and aspiring
to be, transformative.
[5]
At the same time, we are acutely aware that while this dispute takes

us deep into the heartland of South Africa’s political
landscape, the constitutional and legal values and principles
embedded
in our law must be the primary tools we use to adjudicate
the dispute.
The
parties to the litigation; brief overview of the dispute; precise
terms of the relief sought
The
parties
[6]
The applicant is Mr Elias Sekgobelo Magashule, who describes himself

as the unlawfully suspended Secretary General (also referred to as
the ‘SG’) of the ANC.
[7]
The first respondent is Mr Matamela Cyril Ramaphosa, cited herein
in
his personal capacity and in his official capacity as the President
of the ANC.
[8]
The second respondent is Ms Yasmin Jessie Duarte who is the Deputy

Secretary General (DSG) of the ANC.
[9]
The third respondent is the ANC, a voluntary association and
political
party, registered in terms of the electoral laws of the
Republic of South Africa.
The
relief claimed
[10]
The Notice of Motion describes the substantive relief Mr Magashule
seeks as follows:
“
2.
Declaring:
2.1
The ANC step-aside rule or regime and/or Rule 25.70 of the
constitution of the ANC to be
unlawful, unconstitutional, invalid and
null and/or void
ab initio
;
2.2
the suspension letter issued by the second respondent on 5 May (but
dated 3 May) 2021
to be unlawful, unconstitutional, invalid and
null and/or void
ab initio
;
2.3
the suspension of the first respondent to be valid and effective
until lawfully nullified;
and
2.4
the instruction announced by the first, second and/or third
respondents for the applicant
to apologise for issuing the suspension
letter to the first respondent to be unlawful and unenforceable.
3.
Setting aside and/or uplifting the suspension of the applicant from
his position
as ANC Secretary-General or any other position or status
he held or enjoyed in the ANC as at 5 May 2021; …”
An
overview of the dispute
[11]
Mr Magashule, in pursuing the relief he seeks, contends that his
suspension as Secretary
General of the ANC was unlawful and
unconstitutional in terms of both the ANC constitution as well as the
Constitution of South
Africa. In particular, he argues that his
suspension violated the principles of natural justice, including the
audi alteram partem
principle, and violated a number of rights
in the Bill of Rights, including the right to political participation
(s 19 of
the Constitution), the presumption of innocence (s 35
of the Constitution), the right to equality (s 9 of the
Constitution)
and the right to dignity (s 10 of the
Constitution).
[12]
The respondents, in opposing the relief sought, maintain that the
interests and the
integrity of the ANC in fighting corruption
provided the overarching basis for the suspension of Mr Magashule.
They further
contend that the suspension was effected in accordance
with the ANC constitution and deny that Mr Magashule’s
suspension,
which they describe as precautionary as opposed to
punitive, resulted in the violation of any of his rights under either
the ANC
constitution or the Constitution of South Africa. They submit
that although adherence to the principles of natural justice is not

required in relation to precautionary suspensions, it was
nevertheless applied.
The
applications to intervene
[13]
Following the launch of this application, three separate applications
seeking intervention
were brought by members and branches of the ANC.
The applications were those of:
(a)
Mr Mutumwa Dziva Mawere;
(b)
Mr Pule Patrick Nthene and Others; and
(c)
Mr Ntandoyenkosi Nkosenthsha Shezi
[14]
All the intervention applications were opposed by the respondents,
while Mr Magashule
adopted what his counsel described as a
passive stance towards the intervention applications. Oral argument
was heard in the application
of Mr Mawere, while in the
applications of Mr Nthene and Others, and that of Mr Shezi, the
parties agreed that the matter
could be considered and dealt with on
the papers without the need for an oral hearing.
[15]
On 24 June 2021 the Court, having concluded that no case was advanced
to justify
the urgency in respect of all three intervention
applications, struck them from the roll with costs and also provided
reasons for
the orders given.
Background
Hierarchy
of the ANC
[16]
The
position of Secretary General is the highest full-time position in
the ANC. The SG is the chief administrative officer of the
ANC. The
specific powers of the SG are defined in Rule 16.6 of the ANC
constitution.
[3]
Mr Magashule was elected as the SG of the ANC at the Conference held
at Nasrec (the 54
th
National Conference) in Johannesburg from 15 to 20 December 2017.
[17]
The
second-highest ranking full-time position in the ANC is that of the
Deputy Secretary General. The duties and responsibilities
of the DSG
are contained in Rule 16.9 of the ANC constitution.
[4]
[18]
The ANC is
an organisation of branches. To be a member, a person must
necessarily belong to a branch. The National Conference is
made up of
delegates, which means that every person who votes therein must have
been delegated by one or other structure of the
ANC. Ninety-percent
of the delegates are mandated by branches. The National Conference is
the supreme decision-making structure
of the ANC, as provided for in
Rule 10.1 of the ANC constitution.
[5]
[19]
The National Executive Committee (the NEC) is the highest
decision-making structure
between National Conferences. The National
Working Committee (NWC), is a sub-committee of the NEC and is
charged,
inter alia
, with the operation, processing and
implementation of the decisions of the NEC. In terms of Rule 13.8 of
ANC constitution, the
NWC shall—
“
13.8.1
Carry out decisions and instructions of the NEC;
13.8.2
Conduct the current, work of the ANC and ensure that Provinces,
Regions, Branches and all other ANC structures,
such as parliamentary
caucuses, carry out the decisions of the ANC; and
13.8.3
Submit a report to each NEC meeting.”
[20]
The ANC Integrity Commission (also referred to as the ‘IC’)
was established
under Rule 24 of the ANC constitution.   Rule
24.2 provides that, “[t]he Officials and NEC may refer to the
Integrity
Commission any unethical or immoral conduct by a member
which brings or could bring or has the potential to bring or as a
consequence
thereof brings the ANC into disrepute.” The
Integrity Commission plays a role in facilitating integrity and
honesty, and
in promoting the status of the ANC within the public
arena. It seeks to ensure that members respect the ANC constitution
and the
Constitution of the country.
[21]
The
“Officials” referred to above, sometimes known as the
“National Officials”, are a reference to the people

appointed to the following roles within the ANC: the President; the
Deputy President; the National Chairperson; the Secretary General;

the Deputy Secretary General; and the Treasurer General.
[6]
Background
to the dispute
[22]
In November 2020, the National Prosecuting Authority (NPA) charged
Mr Magashule
with several criminal offences, including fraud,
corruption and money laundering relating to his tenure as former
Premier
of the Free State from 2009 2017.
The
DSG addressed a letter, dated 3 May 2021, to Mr Magashule in terms of
which he was temporarily suspended, citing his indictment
as the
reason therefore. The DSG invoked Rule 25.70 of the ANC constitution
as the basis of Mr Magashule’s suspension.
[23]
The validity and implementation of Rule 25.70 of the ANC constitution
forms the basis
of the applicant’s case, and it has become
central to the dispute. It provides that: -
“
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.”
[24]
Mr Magashule’s attack on the constitutionality of the content
of the Rule is
two pronged:
(a)
First, that it offends the ANC constitution; and
(b)
Second, that it infringes upon Mr Magashule’s rights as
enshrined
in the Constitution of the Republic of South Africa.
[25]
In this
regard, Mr Magashule contends that the ANC constitution enshrines the
principle of natural justice, applicable to all disciplinary

procedures initiated in accordance with the ANC’s
constitution.
[7]
He argues that
his suspension did not accord with the principles of natural justice.
[26]
The respondents deny the assertions made by Mr Magashule in this
regard, contending
that,
inter alia
:
(a)
Rule 25.70 is not inconsistent with the South African Constitution
because
the ANC constitution is a private contract “between
members of the ANC” and the powers it confers “are
contractual
powers and not public powers”; and
(b)
Rule 25.70 is only a “preventative” measure as opposed to
a “punitive” measure and, therefore, the principles of
natural justice (as outlined and relied on by Mr Magashule)
are
not applicable. It was further contended that these principles were,
in any event, applied.
[27]
Mr
Magashule principally seeks declaratory relief (in terms of
s 172(1)(a) of the Constitution,
[8]
read with s 38 thereof,
[9]
and/or
s 21(1)(c)
of the
Superior Courts Act 10 of 2013
),
[10]
as well as an order setting aside or uplifting his unlawful
suspension as the SG of the ANC. In addition, he seeks an order
declaring
his suspension of Mr Ramaphosa as valid (until
lawfully nullified).
[28]
In this
regard, Mr Magashule invokes sections 2, 9, 10, 19, and 35(3) of the
Constitution of the Republic to vindicate rights allegedly
infringed
by the respondents.
[11]
[29]
In order to understand the development of this dispute, it is
necessary to traverse
the ANC resolutions and consequences
surrounding the dispute.
The
resolutions and associated events
[30]
In October 2015, the ANC’s 4
th
National General
Council (NGC) adopted a 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.”
[31]
The 54
th
National Conference of the ANC held at Nasrec in
December 2017 dealt with the matter of the ANC’s Credibility
and Integrity
in some detail, and it appears that it was a matter
that weighed heavily with delegates. Deep concern was raised about
the impact
of corruption on the affairs of the ANC, its role and
sustainability as a political party, and the moral high ground it
sought
to hold. The following was noted by the 54
th
National Conference: -
§
“That corruption robs our people of billions that could be used
for their benefit.
§
That the lack of integrity perceived by the public, has seriously
damaged the ANC image, the people’s trust in
the ANC, our
ability to occupy the moral high ground, and our position as leader
of society.
§
That the current leadership structures seem helpless to arrest these
practices, either because they lack the means
or the will, or are
themselves held hostage by them.
§
…
§
That the ANC is endangered to the point of losing credibility in
society and power in government.
§
That our leadership election processes are becoming corrupted by vote
buying and gatekeeping”.
[32]
Arising out of this, there was a general consensus that it was time
for more decisive
action to eradicate the scourge of corruption. It
was resolved that the 2015 NGC resolutions, plus other existing and
new measures,
be implemented urgently by the NEC and Provincial
Executive Committees (PECs). It adopted the following resolutions
(the ‘four
resolutions’) to give effect to the step-aside
principle: -
“
That
the 2015 NGC resolutions plus other existing and new measures are
implemented urgently by the NEC and PECs to:
1.
…
2.
Demand that every cadre accused of, or reported to be involved in,
corrupt practices accounts to the Integrity Committee immediately
or
face DC processes. (Powers of IC under constitutional changes)
3.
Summarily suspend people who fail to give an acceptable explanation
or to voluntarily step down, while they face disciplinary,

investigative or prosecutorial procedures.”
[33]
The 54
th
National Conference further resolved as follows:
-
“
9.2
(h) ANC should take decisive action against all members involved in
corruption including those who use money to influence Conference

outcomes.
…
9.2
(r) Reaffirm the 2015 NGC resolution that, ANC members who are
alleged to be involved in corrupt activities, should, where necessary

step aside until their names are cleared.”
[34]
At the NEC meeting held from 31 July to 2 August
2020, the NEC recorded as follows: -
“
The
NEC welcomed the steps taken by the ANC structures in Gauteng,
KwaZulu-Natal, Eastern Cape and the Free State, in particular
their
insistence that those implicated should step aside while their cases
are being investigated”.
[35]
The NEC further decided that: -
“
Pursuant
to the resolution that those accused of corruption and other serious
crimes against the people, including those charged
in courts, may be
expected to step down from their positions or responsibilities, the
National Officials be requested immediately
to prepare an audited
list of cases and submit this list within one month to the NWC and
the NEC, with recommendations for action.
In executing this task, the
National Officials may call upon the assistance of the Integrity
Commission or any other members who
can be called upon to make a
contribution”.
[36]
Pursuant to the NEC meeting, Mr Magashule
issued a media statement on 4 August 2020, in which he mentioned
the resolutions
and stated that: -
“
The
NEC welcomed the steps taken by the ANC structures in Gauteng,
KwaZulu-Natal, Eastern Cape and the Free State and commended
those
implicated for having volunteered to step-aside whilst their cases
are expeditiously attended to by the relevant structures.”
[37]
Pursuant to the resolutions of the NEC, Mr
Magashule addressed a letter to the provincial structures of the ANC,
in which he annexed
the terms of reference for the implementation of
the step-aside rule. The terms of reference related to the
implementation of the
task given to the National Officials to provide
a report on “members of the ANC who are criminally charged and
need to step
aside”. It was also made clear that members who
were criminally charged, and who do not step aside, would be
suspended under
Rule 25.70 of the ANC constitution.
[38]
In the run-up to the NEC meeting to be held from 28 August 2020,
Mr Ramaphosa
addressed a letter to the members of the ANC on 23
August 2020. He made a plea for the ANC to take a stand against the
scourge
of corruption. He said
inter alia
that, to address
corruption, the ANC must take steps to immediately implement the four
resolutions taken at the National Conference.
[39]
At its meeting from 28 to 30 August 2020, the NEC took steps towards
the implementation
of the 54
th
National Conference
resolutions. It declared a “turning point” in the fight
against corruption. It distinguished between
the following categories
of members for purposes of implementing the resolutions: -
(a)
Those who are formally charged with corruption or other serious
crimes.
They must immediately step aside from all leadership
positions in the ANC, legislatures or other government structures
pending
the finalisation of their cases. If they do not step aside,
they must be instructed to do so.
(b)
Those who are not formally charged but who have been reported to be
involved
in corruption and other serious criminal practices. They
must appear before the ANC’s Integrity Commission to explain
themselves.
Those who do not give an acceptable explanation, may be
suspended.
(c)
Those who have been convicted of corruption or other serious crimes.
They must resign from leadership positions and face
disciplinary action in line with the ANC's Constitution.
[40]
The NEC mandated the National Officials to develop guidelines and
procedures for
the implementation of this resolution.
[41]
It was not long thereafter that, in November 2020, as previously
indicated, that
the NPA charged Mr Magashule with several
criminal offences.
[42]
At its meeting on 6 to 8 December 2020, the NEC recommitted to the
implementation
of the step-aside resolution of the 54
th
National Conference. It: -
(a)
Reaffirmed the position taken at its meeting of 28 to 30 August 2020;
(b)
Noted legal opinions solicited by the Officials;
(c)
Noted that while technical legal opinions are important as background
information, the ANC, as a voluntary organisation, follows its
constitution, Rules, Conference resolutions and NEC decisions, and

operates within the Constitution and laws of the land;
(d)
Urged the Officials to consider the political imperatives and
intentions
of the Conference, and to finalise the step-aside
guidelines for the organisation as a whole, for consideration and
adoption by
the NEC at the beginning of 2021; and
(e)
Noted the report of the Officials on the charges against the SG, and
welcomed
the SG’s decision to voluntarily present himself to
the Integrity Commission on 12 December 2020. The Officials would
process
the outcomes of this engagement and the determination of the
Integrity Commission, and report to the NWC and NEC.
[43]
Following his indictment, Mr Magashule appeared before the Integrity
Commission on
12 December 2020. In the Integrity Commission’s
report, dated 14 December 2020, Mr Magashule stated,
inter
alia
, that: -
(a)
He was a disciplined cadre and made it clear that he was ready to
perform
any tasks given to him by the organisation;
(b)
He was bound by the decisions of the collective;
(c)
He would step aside if so instructed by the NEC; and
(d)
He understood the ANC constitution, its Rules and Code of Conduct.
[44]
The Integrity Commission compiled a report on its engagement with
Mr Magashule,
wherein it: -
(a)
Noted that the SG, as the chief administrative officer, is duty bound
to ensure that the procedures of the ANC are correctly followed
without fear or favour. Disciplinary procedures with regard to
disciplinary action are meticulously set out in the ANC constitution
and need to be strictly followed. Decisions of the ANC and
its
conferences must apply without fear or favour;
(b)
Recommended to the NEC the immediate implementation of the NEC
Resolution
of 6 to 8 August 2020:
“‘
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. The officials as mandated
will develop
guidelines and procedures on implementation and the next NWC meeting
will review progress. In cases where this has
not happened such
individuals will be instructed to step aside.”
(c)
Noted that the NEC’s attention was drawn to the last sentence
of
the recommendation; and
(d)
Noted that the SG indicated that he would not resist the decision of
the
NEC, even if he might not agree with it. However, in the unlikely
event of resistance to this, the NEC should consider suspension

pending the finalisation of the criminal case against him in terms of
Rule 25.70 of the ANC constitution.
[45]
At its meeting on 13 to 14 February 2021, the NEC adopted the
Guidelines developed
by a task team led by the ANC Treasurer General,
Mr Paul Mashatile. It was titled ‘Guidelines and Procedures:
Implementation
of National Conference Resolutions on ANC Credibility
and Integrity: Dealing with Corruption and on Fighting Crime and
Corruption’
(the Guidelines).
[46]
The Guidelines distinguish, principally, between: -
(a)
Members who have been indicted on charges of corruption or other
serious
crimes; and
(b)
Members who are accused of corruption or other serious crimes, but
have
not been indicted.
[47]
Paragraphs 3.1 to 3.3 of the Guidelines deal with members of the ANC
indicted on
charges of corruption or other serious crimes as follows:
(a)
The member
must immediately step-aside, pending the finalisation of his or her
case;
[12]
(b)
If the
member does not step-aside, the SG or NWC may refer the matter to the
Integrity Commission for it to consider and make recommendations
to
the NEC.
[13]
The NEC then makes a decision on the matter;
[14]
(c)
A member
who refuses to step down, after the NEC has decided that he or she
must do so, may be suspended in terms of Rule 25.70;
[15]
and
(d)
A member
who has been so indicted, may also face disciplinary processes within
the ANC for misconduct in breach of Rule 25.70 of
the ANC
constitution.
[16]
[48]
Members who
face allegations of corruption or other serious crimes but who have
not been indicted, are dealt with under paragraph
3.4 of the
Guidelines. There is first an initial investigation (paragraphs
3.4.1.1 and 3.4.1.2)
[17]
and, depending on its outcome, a referral to the Integrity Commission
(paragraphs 3.4.1.3 and 3.4.2).
[18]
The matter is thereafter handled in accordance with the decision of
the Integrity Commission (paragraph 3.4.2.2).
[19]
[49]
On 26 to 29 March 2021, the NEC held a meeting which dealt with the
implementation
of the resolutions and Guidelines on stepping aside.
It resolved that: -
“…
[A]ll members who have
been charged with corruption or other serious crimes must step aside
within 30 days, failing which they should
be suspended in terms of
Rule 25.70 of the ANC constitution….”
[50]
The meeting emphasised that the 30-day period was to enable the
implementation of
the decision in line with the Guidelines, not to
review the decision. On 30 April 2021, the 30-day period expired.
[51]
On 2 May 2021, Mr Magashule attended a meeting of the ANC Officials
which was convened
to prepare for a special NEC meeting. At that
meeting Mr Magashule reported back on his consultations with Dr
Phosa, former
Presidents and others.
[52]
Mr Magashule was invited to, and attended, an NWC meeting, on 3 May
2021, at which
a report from the Officials’ meeting was tabled
by the Treasurer General, who was designated by the Officials to
handle the
step-aside issue. The NWC gave the instruction that
letters of suspension must be written to all affected members.
[53]
On 3 May 2021 the DSG prepared the letter of suspension of
Mr Magashule. On
the same date, Mr Magashule wrote a letter of
suspension to Mr Ramaphosa, addressed to him in his capacity as
President of
the ANC.
[54]
Both letters were delivered to their respective recipients on 5 May
2021. On the
following day, Mr Magashule delivered his
“appeal/review” letter to the DSG, pointing out 12 legal
defects in respect
of his suspension, and purporting to exercise the
right to seek a review of the suspension decision for consideration
by the NEC.
[55]
Erroneously believing that such an appeal/review had the effect of
suspending Mr Magashule’s
suspension, the DSG requested Mr
Magashule to sign two letters authorising the holding of two regional
conferences scheduled for
8 to 9 May 2021. Mr Magashule was
invited to attend (and attended) a meeting held between ANC Officials
and the NWC of the
ANC Women’s League and the NEC on 8 May
2021, in his capacity as the SG of the ANC.
[56]
At the special NEC meeting of 8 May 2021, Mr Magashule was evicted
from participating,
on the ground that he was suspended, despite his
purported appeal/review.
[57]
At the meeting held on 8 to 10 May 2021, it was resolved that: -
(a)
The step-aside Guidelines and procedures would be implemented;
(b)
The suspension of Mr Magashule as the SG was confirmed and the NEC
supported
the suspension;
(c)
The suspension of Mr Ramaphosa as President of the ANC was invalid;
(d)
Mr Magashule’s conduct was declared to be in violation of the
ANC
constitution; and
(e)
In respect of the letter of suspension sent to Mr Ramaphosa, Mr
Magashule
was instructed to ‘withdraw and apologise’,
failing which disciplinary steps were to be taken against him.
[58]
On 10 May 2021, Mr Ramaphosa read out a statement on behalf of the
NEC indicating,
inter alia
, that the NEC had:
(a)
Confirmed Mr Magashule’s suspension;
(b)
Appointed the DSG to perform the tasks of the SG;
(c)
Stated that the letter of suspension written to Mr Ramaphosa by Mr
Magashule
was written without any authority or mandate from any ANC
structure, and agreed that Mr Magashule’s conduct was
“completely
unacceptable and a flagrant violation of the rules,
norms and values of the ANC”; and
(d)
Instructed the Officials to advise Mr Magashule to withdraw the
letter
of suspension purporting to suspend Mr Ramaphosa and apologise
for writing it.
[59]
The DSG addressed a letter to Mr Magashule on 12 May 2021, calling
upon him to publically
withdraw Mr Ramaphosa’s suspension
letter and apologise.
[60]
On 12 May 2021, Mr Magashule wrote to the DSG stating that his rights
had been violated,
he would not apologise, and he was seeking urgent
redress in the courts. The present application was launched as a
matter of urgency
on 14 May 2021.
Preliminary
issues
[61]
There are numerous issues in dispute before this Court, both
preliminary and on the
merits. The preliminary issues will be
addressed first, and relate to the following: -
(a)
The application to strike out brought by Mr Magashule; and
(b)
The respondents’ application for condonation.
The
application to strike out
[62]
Mr
Magashule filed a Rule 6(15) notice seeking to strike out:
[20]
(a)
Mr Ramaphosa’s answering affidavit in its entirety on the basis
that: -
(i)
It does not contribute to the outcome of the application;
(ii)
It addresses irrelevant matter concerning the ANC’s
organisational
renewal, which has no bearing on the relief or facts
relevant to the relief sought;
(iii)
It misconstrues the basis for Mr Ramaphosa’s suspension
and advances
defences that are not relevant to the application;
(iv)
It seeks to justify the CR17 campaign and/or is repetitive and/or
constitutes
an abuse of process and/or is defamatory and/or is
included with an intention to harass, embarrass or annoy Mr
Magashule.
(b)
Specified annexures to the first and second respondents’
affidavits
on the basis that they constitute duplications of the
annexures to the founding affidavit and are irrelevant (the
irrelevant documents).
(c)
Annexures to Mr Ramaphosa’s answering affidavit on the basis
that
they constitute duplications of the second respondent’s
annexures (the duplicated annexures).
(d)
Specified annexures to the second respondent’s answering
affidavit
on the basis that they are irrelevant and do not contribute
to the outcome of the application and/or constitute an abuse of
process
and are defamatory and/or are included with an intention to
harass, embarrass or annoy Mr Magashule (the specified annexures).
Mr
Ramaphosa’s answering affidavit
[63]
Mr Ramaphosa’s answering affidavit was filed two days after the
answering affidavit
was filed by the second and third respondents
(the main answering affidavit). It was argued, by Mr Magashule, that
in preparing
and filing his own answering affidavit, Mr Ramaphosa
was fully aware of matters traversed in the main answering affidavit.

Mr Ramaphosa should thus have been aware that there was no
necessity to file a further affidavit, as all matters relevant
to the
application had been traversed in the main answering affidavit.
[64]
It was argued that Mr Ramaphosa’s affidavit added no value to
the application
and only served to “annoy and inconvenience”
Mr Magashule and unnecessarily overburden the record. It thus had no
relevance
to the issues.
Allegations
relating to Mr Ramaphosa’s suspension
[65]
The allegations contained in Mr Ramaphosa’s affidavit in this
regard are, contends
Mr Magashule, irrelevant and do not address the
charge advanced in the suspension letter. It was contended that Mr
Ramaphosa’s
reliance on the absence of a guilty finding is
totally misplaced and contributes nothing to the issues before the
Court.
[66]
In addition, Mr Ramaphosa explains in detail the review application
between the Public
Protector and him and the finding of the court in
this matter. He annexes his full submissions to the Public Protector
and the
judgment of the Full Bench. He points out that the court held
that he was under no obligation to disclose the donations to the CR17

Campaign in terms of s 96 of the Constitution,
s 2
of the
Executive Members Ethics Act 82 of 1998
and the Executive Ethics
Code.
[67]
Mr
Magashule contends that the findings of the judgment are irrelevant
to his suspension from the organisation and, in any event,
the
judgment is on appeal.
[21]
The
striking out of annexures
[68]
As appears
above, Mr Magashule seeks to strike out the duplicated annexures and
the specified annexures to Mr Ramaphosa’s
answering affidavit.
For the reasons stated above, Mr Magashule contends that the record
is unduly prolix and constitutes an inconvenience
to both the Court
and himself. He submits that Mr Ramaphosa annexed documents that not
only fail to contribute to the outcome of
the application, but are
wholly unnecessary.
[22]
These documents, he contends, have no relevance and seek only to
embarrass him.
Mr
Ramaphosa’s response
[69]
Mr Ramaphosa’s response to the striking out of his affidavit
deals with: -
(a)
The relevance of organisational unity and renewal in the ANC;
(b)
Mr Ramaphosa’s purported suspension;
(c)
The duplication of annexures; and
(d)
The specified annexures.
The
relevance of the issue of organisational unity
[70]
Mr Magashule deals extensively in his affidavit with the
“factionalism”
in the ANC and the unconstitutionality of
various Rules of the ANC constitution and resolutions which deal with
corruption.
(a)
The various resolutions referred to in the affidavit of Mr Ramaphosa
deal
with and refute these allegations. The resolutions, which deal
with corruption, demonstrated a clear determination by the membership

of the ANC to acknowledge the organisation’s failings, to make
a decisive break with corrupt practices and to initiate an
ethical,
political and organisational renewal and unity within the ANC.
(b)
It was therefore logical that Mr Ramaphosa deal with such
allegations.
Mr Magashule’s contention that this chapter
of Mr Ramaphosa’s answer is irrelevant, is ill-conceived.
Allegations
relating to Mr Ramaphosa's suspension
[71]
Firstly, Mr Ramaphosa contends that Mr Magashule “distorted”
the facts
relating to the CR17 campaign in his attempt to justify his
suspension. Mr Magashule stated in the letter of suspension that Mr

Ramaphosa had been reported to the Hawks for involvement in a corrupt
practice relating to the CR17 Campaign and that it “is
pending
before our courts”. He stated that he was thus entitled to
suspend Mr Ramaphosa in terms of Rule 25.70. Mr Magashule

contends further that Mr Ramaphosa need not have dealt with the
lawfulness of his own suspension because the ANC had fully
dealt with
the matter. Mr Ramaphosa responded as follows:
(a)
He was
obliged to refute these allegations. He referred to the Public
Protector’s investigation and the hearing before the
Gauteng
Division of the High Court, which vindicated him, and which belied
the basis for his “purported suspension”;
[23]
(b)
Rule 25.70 only permits someone to be suspended if he has been
indicted
on a criminal charge; and
(c)
The ANC dealt with the lawfulness of Rule 25.70, the step-aside rule
and
Mr Magashule’s suspension. It specifically refrained
from addressing Mr Ramaphosa's suspension, which Mr Ramaphosa

was compelled to deal with.
[72]
Thus the application to strike out Mr Ramaphosa’s affidavit for
lack of relevance
cannot succeed.
The
duplicated annexures
[73]
Annexures A and B to Mr Magashule’s application to strike out
lists annexures
to Mr Ramaphosa’s answer and that of the main
answering affidavit which either duplicate one another, or those in
Mr Magashule’s
founding affidavit. He seeks to have them struck
out because they are duplicates of documents already on record.
(a)
Mr Ramaphosa’s counsel argued that, in an urgent application,
where
affidavits are prepared under great pressure and, for different
litigants working in different work streams, duplication of
allegations
and annexures may occur. There was no prejudice caused to
Mr Magashule other than some costs wasted by the duplication of 78
(of
over 2000) pages.
(b)
In any event, it was argued that the duplication of a document that
is
relevant did not render the document irrelevant.
(c)
This explanation is satisfactory and the striking out of these
documents
would, at this stage, serve no purpose.
The
specified annexures
[74]
Annexure C
to Mr Magashule’s strike out application targets the
abovementioned annexures which, he says, are irrelevant.
[24]
(a)
Mr Ramaphosa contends that the political overview was a vital step in
the process of giving effect to the National Conference resolutions.
He refutes Mr Magashule’s contention that it was
a
factional distortion aimed at him and his supporters.
(b)
The provincial reports illustrate that the NEC applied the step-aside
rule very broadly throughout the structures of the ANC, without
discrimination. It again refutes Mr Magashule’s factionalist

accusation that the step-aside rule was designed to target him and
his supporters.
(c)
The inclusion of Mr Magashule’s indictment: the specifics of
the
indictment are essential elements of the basis upon which Mr
Magashule was charged. He stated that the charges were based solely

on a lack of oversight on his part. The charge sheet demonstrated
that this is untrue. Mr Magashule stated that unidentified “officials

of the ANC” had come to the unanimous and correct conclusion
“that the charges against me are frivolous and unsustainable”.

Mr Magashule’s indictment, however, amply demonstrates
that his description of the charges against him is false. It
shows
that he is being prosecuted on very serious charges of corruption,
fraud and money-laundering.
(d)
The inclusion of the letter to Provincial Secretaries: the NWC
resolved
at its meeting on 3 May 2021 to suspend Mr Magashule and all
those liable for suspension in terms of the NEC’s Guidelines.

Mr Magashule contends that the decision particularly targeted him. Ms
Duarte’s letter to the Provincial Secretaries, however,
refutes
this contention in that it shows that very wide and indiscriminate
effect was given to the NWC’s decision to implement
the
Guidelines.
(e)
The inclusion of Mr Bongo’s letter of suspension: Ms Duarte
addressed
this letter of suspension to Mr Bongo on 3 May 2021, that
is, at the time she addressed a similar letter of suspension to Mr
Magashule.
It also refutes his suggestion that he was a particular
target of the NWC’s suspension decision.
[75]
Having regard to the responses of Mr Ramaphosa, we conclude that each
element of
the striking out application must fail. In regard to the
costs relating to the duplicated documents, the Court may, in making
a
costs order, take this into account. It is a matter we will return
to.
Condonation
[76]
The application of Mr Magashule was set down for 1 June 2021 to be
heard as a matter
of urgency. The Notice of Motion, which was served
on the respondents on or about 13 May 2021, called upon the
respondents to file
their intention to oppose by 14 May 2021 and
answering affidavits before 16h00 on 20 May 2021.
[77]
Mr Magashule contends that the respondents ignored the dates in the
Notice of Motion.
The ANC filed its answering affidavit on 25 May
2021 and Mr Ramaphosa filed his on 27 May 2021. Mr Magashule
submits further
that the respondents failed to file an application
for condonation. Prejudice is alleged but not elaborated upon.
[78]
In his heads of argument, the following is submitted by Mr Magashule:
“
The
position of the applicant regarding the failure of the respondents to
even bother to apply for condonation and thereby showing
utter
disdain and disrespect for this court and its processes deserves the
most serious censure and judicial frown. In the likely
event that the
court is not prepared to go as far as regarding the impugned
answering affidavits
pro non scripto
due to the public
interest issues raised in this matter, then at the barest minimum,
the respondents ought properly to be mulcted
with a punitive cost
order so as to display the court's disapproval of such conduct and to
discourage all those who might be tempted
to follow the bad example
set by the respondents.”
[79]
In his answering affidavit, Mr Ramaphosa states that he is aware that
the respondents’
attorneys had communicated to the applicant’s
attorneys that the respondents would aim to file their answering
affidavits
by 25 May 2021. He states that: -
“
As
matters turned out, between when I was on 25 May 2021 presented with
what would have been the final affidavit to be filed, and
the time
that I ultimately signed the affidavit, I had certain concerns with
the draft, which had to be reworked. I unfortunately,
due to other
pressing commitments in between, only found the opportunity to sign
the affidavit a day or two later than 25 May 2021.
I seek this
Court's condonation for this delay and not having filed my affidavit
with that deposed to by the Deputy Secretary General.”
[80]
It is relevant that on 18 May 2021, the respondents’ attorneys
wrote to Mr
Magashule’s attorney stating that: -
“
3.
In relation to the filing of the answering affidavits, kindly note
that in order for our clients to comprehensively answer to
your
client’s founding affidavits, our clients have a wide range of
ANC officials to consult with and possibly get affidavits
from. Our
clients and the legal team are working as much as they can to have
our clients’ answering affidavits ready as soon
as possible. At
this stage, our clients do not think that we will be able to file the
answering affidavit by Thursday 20 May as
required in your clients’
Notice of Motion.
4.
As you might be aware, the First Respondent is out of the country due
to state/government work commitments and is only scheduled
to return
back in the country on Thursday, 20 May 2021.
5.
We are progressing nonetheless with the preparations and
consultations with our clients and counsel and hope to revert shortly

on when we estimate to be filing our answering affidavits, following
further consultations with the Respondents and the Third Respondent’s

officials/representatives.
6.
We have discussed further with our counsel on the mooted timetable
discussion between counsel of the two parties. Our counsel
would
prefer to discuss after further consultations with our clients when
they have a better sense of when our client will able
to file the
papers.”
[81]
On 21 May 2021 the respondents’ attorneys wrote again to Mr
Magashule’s
attorneys, referring to the letter of 18 May 2021
“as well as the conversation of even date between your Mr. Eric
Mabuza
and the writer hereof.” The letter further set out as
follows:-
“
2.
We write to confirm that we are busy drafting our client’s
answering papers and are working around the clock to finalise
same as
soon as possible. We are Planning to file our clients answering
papers by Tuesday, 25 May 2021.
3.
We further confirm that our counsel will contact your client’s
counsel to discuss the logistical issues relating to the
exchange of
further pleadings, heads of argument and special allocation.”
[82]
There was no response to the letters from Mr Ramaphosa’s
attorneys and it was
assumed, which it was not unreasonable to do,
that Mr Magashule’s attorneys did not have any objection to the
answering affidavits
being filed on 25 May 2021.
[83]
To that extent, it must follow that no condonation application in
respect of the
filing that took place up to 25 May 2021 was
necessary. Mr Ramaphosa’s affidavit was filed two days later,
for which there
is an application for condonation which sets out the
reasons for the two-day delay.
[84]
We are satisfied that a proper case has been made out for the
condonation that has
been sought and, further, for the reasons given,
that no condonation application was necessary in respect of the
period of 20 May
to 25 May 2021.
[85]
Mr
Magashule relied on
Republikeinse
Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk
in his argument that the dates set by the applicant for filing of
affidavits in an urgent applicant must be adhered to.
[25]
However, that case is only authority for the proposition that if the
respondent does not follow the timetable set by the applicant,
it
runs the risk of a default judgment. That was not the case here.
[86]
It should be noted that a case management meeting took place on
28 May 2021
before ADJP Sutherland. Dates were set for the
hearing and for the filing of the replying affidavit and heads of
argument. Mr Magashule’s
legal representatives did not raise
the issue of condonation or prejudice at the time.
[87]
We are of the view that there was no “arrogant disregard”
for the Rules
of Court or the timetable set by Mr Magashule. The
correspondence, to which reference has been made, and the application
for condonation
demonstrate otherwise.
[88]
Mr Magashule’s allegations and submissions are thus totally
refuted by these
events. No prejudice was suffered by Mr Magashule.
His request that a punitive costs order be made against the
respondents in this
regard is unfounded and ill-conceived.
The
issues on the merits
[89]
There are five substantive issues that arise for determination on the
merits, and
they are: -
(a)
Whether Rule 25.70 is unconstitutional in relation to the ANC
constitution
and the Constitution of South Africa;
(b)
The constitutionality and validity of the ANC’s step-aside
rule;
(c)
Whether the suspension of Mr Magashule as SG of the ANC is invalid
and
should be set aside;
(d)
Whether the suspension of Mr Ramaphosa as the President of the ANC is
valid; and
(e)
Whether the letter sent to Mr Magashule requesting him to withdraw
(and
apologise for) the letter purporting to suspend Mr Ramaphosa is
valid.
Is
Rule 25.70 unconstitutional in relation to the ANC Constitution and
South African Constitution?
[90]
The ANC is a voluntary association founded in contract and its
constitution reflects
the terms of the contract concluded between it
and its members. This includes Mr Magashule, as well as Mr Ramaphosa
and Ms Duarte.
This was articulated by the SCA in
Matlholwa v
Mahuma and Others
:
“
As
was correctly emphasised by the court below, a political party is a
voluntary association founded on the basis of mutual agreement.
Like
any other voluntary association, the relationship between a political
party and its members is a contractual one, the terms
of the contract
being contained in the constitution of the party. …”
[26]
[91]
It is trite
and not in dispute that a political party can only act within the
parameters of its own constitution, which would ordinarily
provide
for the extent and the limits of its powers. In addition, however,
the conduct of a political party is not insulated from
the supreme
law which is the Constitution.
[27]
[92]
In
Ramakatsa and Others v Magashule and Others
(
Ramakatsa
)
the Constitutional Court said: -
“
What
this means is that constitutions and rules of political parties must
be consistent with the Constitution which is our supreme
law.”
[28]
[93]
It is
perhaps for that reason that the relationship between a voluntary
association and its members, which operates at one level
through the
lens of its own constitution, while at another level is subject to
the scrutiny of the Constitution, was described
as a unique one in
Ramakatsa
.
[29]
There is therefore an internal and external dimension to the validity
of the constitution of a voluntary association and the conduct

ensuing from that constitution.
[94]
It is within this internal and external framework that Mr Magashule
locates his challenge,
as he contends that Rule 25.70 contravenes the
ANC constitution. He further contends that the inclusion of Rule
25.70 within the
ANC constitution results in that constitution being
inconsistent with the Constitution of South Africa. We proceed to
examine these
two separate but related challenges.
[95]
Our law
recognises the principle that, in some instances, a private
organisation may exercise public powers and in so doing subject

themselves to the constraints that go with exercising public
power.
[30]
In the context of
the dispute before the Court it is clear, however, that
notwithstanding that the actions of the ANC may often
generate public
interest and curiosity, the decisions which are the subject of the
relief in these proceedings are private in nature,
do not derive
their source from any public power, nor are they the manifestation of
the exercise of public power. Accordingly,
the principles that find
application in the exercise of public power by private bodies have no
application.
Rule
25.70 is in conflict with the ANC Constitution
Inconsistency
with the rest of Rule 25 and Appendix 3 of the Constitution
[96]
The thrust of Mr Magashule’s argument is that Rule 25.70, which
is located
in the chapter of the ANC constitution dealing with
“Managing Organisation Discipline”, is inconsistent with
the other
provisions of the chapter. In particular, he argues that
Appendix 3 of the ANC constitution applies generally to all
disciplinary
processes, including a decision to suspend – and
not only to disciplinary proceedings. Mr Magashule submits that
it
must therefore apply to a decision taken in terms of Rule 25.70.
Appendix 3 provides that the fair trial objectives that are
sought to
be achieved in disciplinary proceedings require the following: -
(a)
That there is a formal procedure;
(b)
That there is a just and fair procedure;
(c)
A member is presumed innocent until proven guilty;
(d)
A member has a chance to defend himself or herself;
(e)
A member has the right of appeal; and
(f)
A charge must be made within a reasonable time after the violation
or
misconduct was allegedly committed.
[97]
Mr Magashule characterises Rule 25.70 as disciplinary in nature and
says that to
this extent, it should have provided for the same
procedural and fair process safeguards as contained in Appendix 3; to
the extent
that it does not, it is inconsistent with the ANC
constitution and is therefore unlawful, unconstitutional, invalid and
null and/or
void
ab initio.
[98]
Before considering the nature of whether the action of suspension
contemplated in
Rule 25.70 is disciplinary or otherwise, it may be
useful to have regard to Appendix 3 to the ANC constitution. It is
headed “Procedure
for the Conduct of Disciplinary Proceedings”
and provides that “The objective of disciplinary procedure is
to ensure
that in all disciplinary proceedings…” the six
fair trial objectives, to which reference has been made, are
achieved.
[99]
What is clear is that Appendix 3 is only concerned with disciplinary
proceedings
and deals exclusively with them from their commencement
to their finalisation, including covering matters such as the charge
sheet,
the plea, the presentation of evidence, the verdict, and the
post-verdict process. It seeks to ensure that the disciplinary
proceedings
to which Appendix 3 relates, will be conducted in
compliance with the guarantees that usually attach to a fair trial or
hearing.
[100]
There is nothing in Appendix 3 that suggests that it is applicable to
a decision taken outside of
the context of disciplinary proceedings
and, in particular, there is no reference to a decision to suspend
taken either in terms
of Rule 25.70 or any other rule. Mr Magashule’s
insistence that Appendix 3 applies to decisions taken in terms of
Rule 25.70
is therefore without foundation.
[101]
A decision in terms of Rule 25.70, whatever its characterisation may
be (disciplinary or precautionary),
is not a disciplinary proceeding
and does not trigger the application of Appendix 3, simply because it
falls within the matrix
of Rule 25. It could never have been
contemplated that fair trial procedures can automatically have
application outside of the
setting of a trial or a hearing. By their
very nature, the specific fair trial guarantees which Mr Magashule
relies upon,
by reference to Appendix 3, are designed for and can
only have practical application in a trial or in disciplinary
proceedings.
[102]
Of course,
that does not mean that the principles of natural justice do not have
application in dealing with Rule 25.70, but rather
it is simply
inappropriate and legally unsustainable to seek to automatically
incorporate fair trial procedures and guarantees
into what is
essentially a decision to suspend. A decision to suspend is not a
trial, nor is it a disciplinary proceeding.
[31]
[103]
What renders the argument even more unsustainable is that Rule 25.70
does not contemplate disciplinary
proceedings in any manner, and the
decision to suspend is not causally connected to any existing or
contemplated future disciplinary
proceedings. Invoking Appendix 3
under those circumstances unduly strains the scope of what Appendix
3, given its ordinary meaning,
was intended to cover.
[104]
In this regard, we are reminded that a voluntary organisation must
act in terms of its constitution,
and the attempt to clothe a
decision to suspend with the character of a disciplinary proceeding
is offensive to the language and
intent of the ANC constitution.
[105]
On this basis, the contention that Rule 25.70 stands to be struck
down because it is in conflict with
the ANC constitution (in
particular, Rule 25 as read with Appendix 3) stands to be
dismissed.
Exclusion
of the audi alteram partem principle in Rule 25.70
[106]
Mr Magashule says that Rule 25.70 is susceptible to attack because it
does not provide for the application
of the rules of natural justice,
including
audi
, in its formulation and therefore falls foul of
the Constitution of South Africa.
[107]
The extent to which the reach of the courts was excluded in enquiring
into the decisions of tribunals
established by voluntary associations
was considered by the then Appellate Division in the matter of
Turner
v Jockey Club of South Africa
(
Turner
) where the court
quoted and relied on the principle which was expressed in the case of
Jockey Club of South Africa and Others v Feldman
as follows: -
“‘
[N]o
statutory provisions come into play; it is a case of agreement to be
bound by certain rules, namely the rules of the Jockey
Club. Though
these rules do not state expressly that the decision of the
race-meeting stewards in regard to the conduct of a jockey
in riding
a horse shall be final, in my view they imply that, subject to a
right of appeal to the local executive stewards and
the Head
Executive Stewards, such decision shall be final as regards the
merits of questions enquired into, and that as regards
such merits
the jurisdiction of Courts of law to interfere with action taken in
accordance with such decision shall be excluded.
The exclusion of the
jurisdiction of the Courts of law on the merits is not contrary to
public policy, and our Courts have recognised
that the decisions of
such tribunals on the merits are final; but if the tribunal has
disregarded its own rules or the fundamental
principles of fairness,
the Courts can interfere”.’
[32]
[108]
Clearly private tribunals are obliged to apply the principles of
fairness as part of their own rules,
either expressly or by
implication. In
Turner
, the court referred to the test to be
applied in determining whether the fundamental principles of fairness
are implied as follows:
-
“
The
test for determining whether the fundamental principles of justice
are to be implied as tacitly included in the agreement between
the
parties is the usual test for implying a term in a contract.... The
test is, of course, always subject to the expressed terms
of the
agreement by which any or all of the fundamental principles of
justice may be excluded or modified.”
[33]
[109]
While the law as expressed in
Turner
still holds good, it must
of course be considered in the context of both the supremacy of the
Constitution and the imperative expressed
in
Ramakatsa
that
the constitution of a voluntary association, such as the ANC, must be
consistent with the Constitution of South Africa.
[110]
It is not a
proposition that sits comfortably in our constitutional dispensation
that the obligation to observe the principles of
natural justice can
ever be excluded in disciplinary proceedings, even those that take
place in private or contractual settings.
To do so would undermine
the commitment to fairness and natural justice which has become an
integral part of our law. In
Modise
and Others v Steve's Spar Blackheath
,
Zondo AJP (as he then was), stated that “[t]he
audi
rule
is part of the rules of natural justice which are deeply entrenched
in our law.”
[34]
[111]
The above approach deals largely with the operation of the principle
of natural justice in the setting
of disciplinary proceedings, as
opposed to a decision to suspend as contemplated in Rule 25.70. For
the reasons we have already
given, a decision to suspend is not a
disciplinary proceeding and therefore does not automatically attract
the operation of the
principles of natural justice.
[112]
It would appear that
audi
would apply to a decision to suspend
that is punitive in nature and not to a decision to suspend that is
precautionary. Our law
distinguishes between what is referred to as a
“punitive” as opposed to a “precautionary”
suspension. In
Long v South African Breweries (Pty) Ltd and Others
the Constitutional Court dealt with the precautionary suspensions as
follows: -
“
In
respect of the merits, the Labour Court’s finding that an
employer is not required to give an employee an opportunity to
make
representations prior to a precautionary suspension, cannot be
faulted. As the Labour Court correctly stated, the suspension
imposed
on the applicant was a precautionary measure, not a disciplinary one.
This is supported by
Mogale
,
Mashego
and
Gradwell
.
Consequently, the requirements relating to fair disciplinary action
under the LRA cannot find application. Where the suspension
is
precautionary and not punitive, there is no requirement to afford the
employee an opportunity to make representations.
In
determining whether the precautionary suspension was permissible, the
Labour Court reasoned that the fairness of the suspension
is
determined by assessing first, whether there is a fair reason for
suspension and secondly, whether it prejudices the employee.
The
finding that the suspension was for a fair reason, namely for an
investigation to take place, cannot be faulted. Generally,
where the
suspension is on full pay, cognisable prejudice will be ameliorated.
The Labour Court’s finding that the suspension
was
precautionary and did not materially prejudice the applicant, even if
there was no opportunity for pre-suspension representations,
is
sound.”
[35]
[113]
While
Long
deals with precautionary suspensions in an
employment context, precautionary suspensions within a political
party were dealt with
on a similar basis in
Lewis v Heffer and
Others
in which the court held:
“
But
then comes the point: are the NEC to observe the rules of natural
justice? In
John v Rees
([1969]
2 All ER 274
at 305,
[1970] Ch
345
at 397) Megarry J held that they were. He said:
‘…
suspension is merely
expulsion
pro tanto
. Each is penal, and each deprives the
member concerned of the enjoyment of his rights of membership or
office. Accordingly, in
my judgment the rules of natural justice
prima facie apply to any such process of suspension in the same way
that they apply to
expulsion.’
Those
words apply, no doubt, to suspensions which are inflicted by way of
punishment, as for instance when a member of the Bar is
suspended
from practice for six months, or when a solicitor is suspended from
practice. But they do not apply to suspensions which
are made, as a
holding operation, pending enquiries. Very often irregularities are
disclosed in a government department or in a
business house; and a
man may be suspended on full pay pending enquiries. Suspicion may
rest on him; and so he is suspended until
he is cleared of it. No
one, so far as I know, has ever questioned such a suspension on the
ground that it could not be done unless
he is given notice of the
charge and an opportunity of defending himself, and so forth. The
suspension in such a case is merely
done by way of good
administration. A situation has arisen in which something must be
done at once. The work of the department
or the office is being
affected by rumours and suspicions. The others will not trust the
man. In order to get back to proper work,
the man is suspended. At
that stage the rules of natural justice do not apply….”
[36]
[114]
We also do not understand the respondents to suggest that the
principles of natural justice do not
apply generally to Rule 25.70;
they accept that it may, in appropriate circumstances, be implied as
a term of the agreement between
the ANC and its members as evidenced
by the ANC constitution and depending on the nature of the
suspension.
[115]
It must therefore follow that Rule 25.70 cannot be struck down as
unconstitutional on the basis that
it is silent on the principles of
natural justice. The answer to that assertion is simply that where,
on the one hand, the decision
to suspend is taken in terms of Rule
25.70 is punitive in nature, the Rule may well require the
applicability of the principles
of natural justice. On the other
hand, a precautionary suspension does not attract the principles of
natural justice and cannot
be rendered open to attack when those
principles are not applied. This is the state of our law as expounded
by the Constitutional
Court in
Long
, and we deal later in this
judgment with the question of whether the suspension of Mr Magashule
was punitive or precautionary.
[116]
That being the case, it also cannot be contended that Rule 25.70 is
open to attack and may be declared
to be inconsistent with the ANC
constitution. It is open to the application of the rules of natural
justice and in particular does
not, at the level of principle,
exclude the operation of those principles as Mr Magashule has sought
to assert.
[117]
The challenge to the constitutionality of Rule 25.70 must fail on
this ground as well.
Reconciling
Rule 25.70 with the Constitution of South Africa
[118]
Mr Magashule also seeks the striking down of Rule 25.70 on the basis
that it offends, and is in conflict
with, various provisions of the
Constitution. He submits in particular that: -
(a)
It violates and/or limits the right to participate in political
activity
provided for in s 19 of the Constitution;
(b)
It violates the principles of natural justice in that it does not
provide
for the right to be heard before the action is taken;
(c)
It violates the principles of natural justice in that it does not
provide
for the right to an appeal;
(d)
It violates the presumption of innocence guarantee in terms of
s 35(3)(h)
of the Bill of Rights in that it provides for a
suspension before the determination of guilt or innocence; and
(e)
It violates the rights to equality and human dignity in terms of s 9

and s 10 of the Bill of Rights.
[119]
In dealing
with this leg of the challenge, it may be useful to begin with the
injunction in
Ramakatsa
that a voluntary association is not only obliged to observe and give
effect to its own constitution, but also that its own constitution

must be consistent with that of the country’s Constitution.
[37]
On that basis we proceed to deal with the challenge in its various
components.
The
section 19 argument
[120]
Section 19 of the Constitution provides as follows: -
“
19.
Political rights
(1)
Every citizen is free to make political choices, which includes the
right—
(a)
to form a political party;
(b)
to participate in the activities of, or recruit members for, a
political party; and
(c)
to campaign for a political party or cause.
(2)
Every citizen has the right to free, fair and regular elections for
any
legislative body established in terms of the Constitution.
(3)
Every adult citizen has the right—
(a)
to vote in elections for any legislative body established in terms
of the Constitution,
and to do so in secret; and
(b)
to stand for public office and, if elected, to hold office.”
[121]
Section 19 is critical in giving expression to the self-determination
and associational rights of
citizens, and allowing them to express
their political will in joining the party of their choice and
participating in its activities.
[122]
In
Ramakatsa
this seminal right was recognised in the
following terms: -
“…
It cannot be gainsaid
that success for political parties in elections lies in the policies
they adopt and put forward as a plan
for addressing challenges and
problems facing communities. Participation in the activities of a
political party is critical to
attaining all of this.”
[38]
[123]
Rule 4 of the ANC constitution deals with the procedure by which one
can apply for and become a member,
and generally provides that
membership of the ANC shall be open to all South Africans who: are
above the age of 18 years, irrespective
of race, colour and creed;
accept its principles, policies and programmes; and are prepared to
abide by the ANC constitution and
rules.
[124]
Rule 5 deals with the rights and duties of members and provides in
part as follows: -
“
5.1
A member shall be entitled to:
5.1.1
Take a full and active part in the discussion, formulation and
implementation of the policies of the ANC;
5.1.2
Receive and impart information on all aspects of ANC policy and
activities;
5.1.3
Offer constructive criticism of any member, official, policy pregame
or activity of the ANC within its structures;
5.1.4
Take part in elections and be elected or appointed to any committee,
structure, commission or delegation
of the ANC; and
5.1.5
Submit proposals or statements to the Branch, Province, Region or
NEC, provided such proposals or statements
are submitted through the
appropriate structures.”
[125]
The same rule also provides some detail with regard to the duties
that rest on its members. It says
they shall, amongst other things: -
“
5.2.1
Belong to and take an active part in the activities of his or her
branch;
5.2.2
Take all necessary steps to understand and carry out the aims,
policies and programmes of the ANC;
5.2.3
Explain the aims, policies and programmes of the ANC to the people;
5.2.4
Deepen his or her understanding of the social, cultural, political
and economic problems of the country;
5.2.5
Combat propaganda detrimental to the interests of the ANC and defend
the policies, aims and programme of
the ANC;
5.2.6
Fight against racism, tribal chauvinism, sexism, religious and
political intolerance or any other form of
discrimination or
chauvinism;
5.2.7
Observe discipline, behave honestly and carry out loyally the
decisions of the majority and decisions
of higher bodies.”
[126]
In terms of Rule 4.16, every member of the ANC on becoming a member
must make the following solemn
declaration:
“
l,
[…], solemnly declare that I will abide by the aims and
objectives of the African National Congress as set out in the

Constitution, the Freedom Charter and other duly adopted policy
positions, that I am joining the Organisation voluntarily and without

motives of material advantage or personal gain, that I agree to
respect the Constitution and the structures and to work as a loyal

member of the Organisation, that I will place my energies and skills
at the disposal of the organisation and carry out tasks given
to me,
that I will work towards making the ANC an even more effective
instrument of liberation in the hands of the people, and
that I will
defend the unity and integrity of the Organisation and its
principles, and combat any tendency towards disruption and

factionalism.”
[127]
Rule 5.2.7 in turn obliges every member to, “[o]bserve
discipline, behave honestly and carry
out loyally the decisions of
the majority and decisions of higher bodies.”
[128]
There are also extensive provisions in the ANC constitution that
provide mechanisms for the ANC to
hold its members accountable to the
standards expected of them; to discipline them when necessary; and,
in accordance with proper
fair trial processes, to impose upon them a
range of possible penalties which includes the payment of a fine,
suspension or even
expulsion.
[129]
In addition to the above, provision is also made in Rule 25.70 for
the temporary suspension of a member
under circumstances other than
those where disciplinary proceedings are contemplated.
[130]
Thus, what emerges is that the ANC constitution clearly spells out
how to seek and obtain membership
of the ANC, and then having done
so, how the rights of membership falls to be exercised. It must be
so, and it was not disputed,
that a political party has the right to
take action against its’ members in terms of its disciplinary
and other processes,
and that such action may well result in the
suspension and or the expulsion of a member.
[131]
Apart from the rights to political participation found in s 19
of the Bill of Rights, many voluntary
associations also locate their
formation and existence both philosophically and legally in the right
of freedom of association
found in s 18 of the Constitution
which provides that “[e]veryone has the right to freedom of
association,” –
something which was recognised in
Ramakatsa
.
[132]
The learned
authors Currie and de Waal describe these associational rights and
their importance as follows:
[39]
“
Associational
rights enable political parties to provide a bridge from individual
citizenship to representative democracy. Associational
rights secure
the space for those intimate associations we deem crucial to our
self-understanding and prevent the state from exercising
too
totalising an influence over decisions about who to love and how to
love them. Associational rights similarly safeguard primordial

religious and cultural attachments from undue state interference.
Associational rights advance the goal of substantive equality
by
freeing labour to bargain with capital on a more equal footing, by
freeing woman to form institutions suited to their particular
needs,
and by freeing historically disadvantaged groups to pursue
shareholder equity through broad-based black economic empowerment

initiatives.
[40]
…
There
is something about the very structure of association that makes them
worth protecting: capture. Capture is a function of—one
might
even say a necessary and logical consequence of—the very
structure of associational life. In short, capture justifies
the
ability of associations to control their association through
selective membership policies, the manner in which they order
their
internal affairs, and the discharge of members or users. Without the
capacity to police their membership and dismissal policies,
as well
as their internal affairs, associations would face two related
threats. First, without built-in limitations on the process
of
determining the ends of the association, new members, existing
members and even outside parties could easily distort the purpose,

the character and the function of the association. Secondly, and for
similar reasons, an association’s very existence could
be at
risk. Individuals, other groups or a state inimical to the value of a
given association could use ease of entrance into,
and the exercise
of voice in, an association to put that same association out of
business.
[41]
[133]
In the context of political associations, Currie and de Waal go on to
say that: -
“
There
are at least two likely situations in which the interest behind the
restrictions might trump an organisation’s associational

freedom. The first situation is one in which the state wishes to
alter the internal affairs of political parties. Generally, the
state
will attempt to justify its interference by arguing that the close
relationship political parties and the state requires
intervention in
the party’s internal affairs to ensure that the party serves
its representative function in a representative
democracy. For
example, in some jurisdictions representative democratic politics
demands that the members of political parties
elect the candidates of
their political party to represent them in elections.
The
second situation is one in which the state attempts to open up
restrictive party membership policies. The state might argue
that
democracy requires that political demands are made by representative
groups of interested individuals….”
[42]
[134]
The sharp question that arises is whether a suspension of a member in
terms of Rule 25.70 constitutes
a violation or a limitation of the
right in s 19 to participate in the activities of a political
party or whether, as the
ANC contends, it is a vital and important
component of recognising the self-determination of a political party
to regulate how
participation is given effect to.
[135]
In
Ramakatsa
the Constitutional Court, beyond articulating the
importance of the rights contained in s 19 of the Bill of
Rights, said the
following in respect of the approach that must be
taken in dealing with the validity (or otherwise) of the constitution
of a political
party in relation to s 19:
“
This
right may be limited only on authority of a law of general
application. …
What
this means is that constitutions and rules of political parties must
be consistent with the Constitution which is our supreme
law.
…
Section
19 of the Constitution does not spell out how members of a political
party should exercise the right to participate in the
activities of
their party. For good reason this is left to political parties
themselves to regulate. These activities are internal
matters of each
political party. Therefore, it is these parties which are best placed
to determine how members would participate
in internal activities.
The constitutions of political parties are the instruments which
facilitate and regulate participation
by members in the activities of
a political party.”
[43]
[136]
Can it then be said that the ANC constitution is inconsistent with
s 19 of the Constitution?
A political party represents the
coming together of people who share a common vision and a commitment
to work together in advance
of common objectives and values. The ANC
constitution reflects its commitment to unite South Africa and work
towards its liberation
as well as social and economic justice for its
people.
[137]
Clearly the organisation is entitled to manage its membership to
ensure that it admits only those
that subscribe to what it stands
for. Having done that, it is also (as
Ramakatsa
reminds us)
entitled to internally regulate that membership and its participation
in accordance with the broad objectives of the
organisation. That is,
in fact, the essence of what its associational rights and the
recognition of its autonomy requires, and
accords in all respects
with
Ramakatsa
when it says that these are matters internal to
political parties and that they are best placed to regulate them.
[138]
The ANC constitution provides in the fullest manner for both
membership and participation of its members
in the affairs and
activities of the ANC – as is evidenced by Rule 4 and 5
thereof. The language of both Rule 4 and Rule
5 do not constitute any
limitation on the right of members to participate. The scope of the
right in s 19 of the Constitution
does not create a
constitutional bar to the suspension and/or expulsion of a member.
The general tenor and terms of the contract
between the ANC and its
members clearly contemplated that the ANC would give effect to and
regulate how membership was to be exercised.
In this regard, there
are many examples of how this “giving effect to” takes
place: -
(a)
The ANC constitution provides that where a member or a branch has not
paid dues for a specified period, they cease to be members of a
branch in good standing as the case may be. This in turn affects
the
level and extent of their participation in the ANC. This is no more
than an incidence of membership agreed upon in advance
between the
ANC and its members, and not a violation or a limitation of the
right;
(b)
The ANC constitution spells out with some detail the circumstances
under
which disciplinary processes may be initiated and the sanctions
that may be imposed. This, again, is an incidence of membership

agreed upon in advance and not a violation or a limitation of the
right to participate; and
(c)
The ANC Constitution, in Rule 25.70, sets out in clear terms the
jurisdictional
requirements that must be met before a suspension can
be effected. This again is an incidence of membership and not a
violation
or a limitation of the right to membership and
participation.
[139]
To suggest
that every attempt to regulate and give effect to how participation
is to be effected would constitute a violation or
a limitation of
s 19, would not do justice to
Ramakatsa
,
which reminds us that these are matters best left to the agreement
between the party and its members (provided, of course, it
passes the
scrutiny of the Constitution).
[44]
Such an approach would also make unacceptable inroads into the
associational rights of the ANC and its members, which include Mr

Magashule, Mr Ramaphosa, Ms Duarte and many others.
[140]
In line
with the
dicta
in
Ramakatsa
,
a court must take care not to second-guess the intention of the
parties to the unique contract which represents the relationship

between a political party and its members. Provided the constitution
is not in conflict with that of the country and the organisation

complies with its own constitution, how the right to participate is
internally regulated and given effect to, is largely an internal

matter and is best left to the party and its members to decide.
[45]
[141]
In doing
so, they reflect what suits the structure and functioning of their
organisation, and what is best suited to the character
of the
organisation and the values they have collectively committed
themselves to. In this regard, the right of an organisation
to
discipline, suspend and/or expel its members in defined circumstances
does not stand in competition to the right to participate,
but rather
goes to the heart of how a voluntary association regulates the right
to participate in accordance with its own autonomy
and the
associational rights it and all its members enjoy – as
Ramakatsa
reminds us.
[46]
[142]
Mr Magashule relies on Brickhill and Babiuch who state: -
“…
[t]he
purpose of … s 19(1) is to ensure that citizens are able
freely to align themselves with the political cause or party
of their
choice without fear of adverse consequences.”
[47]
[143]
The same authors, however, take the view that:
“…
In
so far as the constitutions of the various political parties
constrain members of political parties or other individuals from

participating, … s 19(1) will be of limited assistance. It
will not enable applicants to challenge admission criteria or
members
to dispute intra party decision-making mechanisms or
disciplinary procedures.…”
[48]
[144]
In any event, there was no suggestion that acquisition of membership
in the ANC did not carry with
it the understanding that such
membership was the subject of internal regulation carefully spelt out
in the ANC constitution. Furthermore,
there is nothing objectionable
about the manner in which the participation of the members of the ANC
is regulated. We have already
dealt with the application of the rules
of natural justice in the context of Rule 25.70 and will later deal
with how the jurisdictional
requirements of Rule 25.70 must also be
complied with, all of which point compellingly in the direction that,
even when a voluntary
association deals internally with the
regulation of participation including the suspension of a member, it
is not at liberty to
do as it pleases. It must still act lawfully.
Rule
25.70 violates the right to be heard
[145]
We have already dealt with this argument in the context of the
internal challenge to Rule 25.70 and
the same argument and
conclusions will apply with equal force to this leg of the challenge.
The question therefore is whether there
should be
audi
and, if
so, whether there was
audi
. The first question has already
been answered in that
audi
could have application and cannot
therefore be invoked as a basis for attacking the constitutionality
of Rule 25.70. The second
question as to whether
audi
was
given effect to, will be dealt with in the part of this judgment that
deals with the attack on the letter of suspension.
Rule
25.70 violates the right of appeal
[146]
Mr Magashule contends that Rule 25.70 is unconstitutional to the
extent that it does not provide for
a right of appeal against any
suspension effected in terms of the rule and argues that it “amounts
to a separate breach of
the constitutional rights of the applicant,
albeit under the general rubric of
audi.
”
[147]
The right of appeal upon which Mr Magashule relies is to be located
in Appendix 3 which we have
already dealt with, as well as in
s 35(3)(o) of the Constitution. Section 35(3)(o) provides as
follows: -
“
(3)
Every accused person has a right to a fair trial, which includes the
right— (o) of appeal to, or review by, a higher court.”
[148]
For the reasons already given, Mr Magashule cannot call into aid
Appendix 3, as its scope and application
is expressly intended to
cover disciplinary proceedings and the process under Rule 25.70 is
not a disciplinary proceeding.
[149]
The reliance on the Constitution is also misplaced as the right of
appeal arises in the context of
criminal proceedings and is part of
the rights afforded to accused persons in terms of s 35(3). Mr
Magashule is not an accused
person facing criminal proceedings within
the ANC, and he does not enjoy a right of appeal against the decision
to suspend him.
The ANC constitution does not create such a right in
the context of Rule 25.70; nor can it be said that such a right
should exist
because, simply put, our law does not recognise an
automatic right of appeal as part of the principles of natural
justice. The
Constitution recognises such a right in s 35(3),
but does so in the limited context of a criminal trial and not beyond
that.
Presumption
of innocence
[150]
Mr Magashule says that Rule 25.70 applies to persons who are charged
and not convicted and that accordingly,
it violates the presumption
of innocence as it seeks to visit a sanction on someone who is
entitled to the benefit of the presumption
of innocence. The argument
goes that the suspension of an innocent person stands in contrast to
the presumption of innocence, is
a violation of the presumption, and
therefore falls to be set aside as being unconstitutional.
[151]
The
presumption of innocence is an important principle in ensuring
fundamental fairness in the process of determining guilt or
innocence, and it understandably has been a hallmark of what would
constitute fair trial hearing. Appendix 3 affirms its importance
in
the context of disciplinary proceedings, while s 35(3)(h) of the
Bill of Rights entrenches it in criminal proceedings.
[49]
Beyond that, there is no principle that suggests it finds application
in civil proceedings. This right regulates the conduct of
criminal
proceedings. Its operation is confined to those proceedings. Currie
and de Waal make the point that, “…the
presumption of
innocence is a specified constitutional right that arises only in the
context of an accused’s right to a fair
trial.”
[50]
[152]
If Mr Magashule were correct, the presumption of innocence
would preclude any disciplinary proceedings
or, indeed, any civil
litigation against the perpetrator of a crime. That, according to the
respondents, would be an obvious absurdity.
[153]
The presumption of innocence does not, therefore, attach to him in
that context and it can neither
stand in the way of the operation of
Rule 25.70, nor constitute a violation of his rights when Rule 25.70
is invoked.
[154]
In
Prinsloo v Van der Linde
the Constitutional Court
specifically considered the application of the presumption outside of
criminal proceedings and concluded
as follows: -
“…
an
onus
in a civil case cannot be equated with the overall onus
of proof in criminal cases. In
Mabaso v Felix
the
Appellate Division described the fundamental difference between the
incidence of the
onus
of proof in civil and criminal cases in
the context of assault as follows:
‘
In
its anxiety that no accused should be punished for a crime without
proof of his guilt our common law deliberately places the
burden of
proving every disputed issue, save insanity, on the prosecution. But
in civil law . . . considerations of policy, practice,
and fairness
inter partes
may require that the defendant should bear the
overall
onus
of averring and proving an excuse or
justification for his otherwise wrongful conduct.’
There
is indeed nothing rigid or unchanging in relation to the question of
the incidence of the
onus
of proof in civil matters, no
established ‘golden thread’ like the presumption of
innocence that runs through criminal
trials. As Davis AJA, quoting
Wigmore
, put it:
‘
.
. . all rules dealing with the subject of the burden of proof rest
“for their ultimate basis upon broad and undefined reasons
of
experience and fairness”.
As
long as the rules relating to the
onus
are rationally based, therefore, no constitutional challenge in terms
of s 8 will arise.”
[51]
[155]
It is for these reasons that it is also not open to Mr Magashule to
seek to challenge the validity
and the constitutionality of Rule
25.70 on the basis that the presumption of innocence was not afforded
to him. The attempt to
apply it in the context of Rule 25.70 is
misplaced and not sustainable.
The
challenge located in s 9 and s 10 of the Bill of Rights
[156]
Mr
Magashule contends that his suspension results in the violation of
his rights to equality and dignity located in s 9 and
s 10
of the Bill of Rights, and that he is entitled to the relief he seeks
on those grounds as well.
[52]
Whilst the right to dignity is central in our constitutional order,
and at the level of principle, lawful and unlawful collateral
conduct
may often have the effect of impairing the dignity of a person, it
has often been recognised that while lawful conduct
may have the
effect of impairing the dignity of a person, it is often an
inevitable and unavoidable consequence of the exercise
of power or
rights and obligations. In
Makwanyane
for example, the Court accepted that although imprisonment inevitably
impairs a person’s dignity, the State has the power
to impose
imprisonment as a form of punishment.
[53]
Similarly, a lawful eviction, or for that matter a lawful suspension,
may well impair the dignity of those affected but that cannot
stand
in the way or serve as an insurmountable obstacle to the eviction or
the suspension as the case may be.
[157]
Accordingly, if the suspension of Mr Magashule accords with the ANC’s
constitution and the jurisdictional
requirements set out therein,
then it can hardly be contended that it stands to be set aside
because its effect may be to infringe
upon the dignity of Mr
Magashule. If that were to be the case, then all lawful conduct would
stand to be challenged on this basis
alone and the right to dignity
would invariably trump the lawful exercise of public and private
power including contractual rights
and obligations. Simply put, if Mr
Magashule’s suspension is found to be lawful in all respects,
then he cannot call into
aid the right to dignity. We deal later with
the lawfulness or otherwise of Mr Magashule’s suspension.
[158]
In so far
as the equality challenge is concerned, neither Rule 25.70 nor the
step aside resolution constitutes discrimination in
the sense that
there was an irrational differentiation made between different
categories of persons.
[54]
In
particular, we conclude that the categories of persons who fall to be
dealt with by the NEC resolutions is both rational and
properly
justified, and in accordance with the resolutions of the 54
th
National Conference. The challenge on this basis must also fail.
The
step-aside rule
[159]
The issue relating to the step-aside principle arose from the
resolutions adopted by both the National
Conference in 2017, the 54
th
National Conference of the ANC (the four resolutions) and those of
the NEC meeting of 31 July to 2 August 2020.
[160]
The resolutions of both the 54
th
National Conference and
the NEC deal with the issue of ANC members accused of, or alleged to
be involved in corrupt activities,
and having to step aside from
their positions in the party for that reason.
[161]
The validity of the 54
th
National Conference’s four
resolutions is not in dispute. As indicated earlier, they provide,
under the heading “ANC
Credibility and Integrity” for
members accused of or reported to be involved in corrupt activities
to account for their conduct
to the Integrity Commission. Failure to
subject themselves to the processes of the Integrity Commission would
result in disciplinary
action by the party. They may also be
suspended if they fail to provide a satisfactory explanation, or
voluntarily step aside pending
the outcome of the disciplinary,
investigative or criminal proceedings.
[162]
The other two resolutions, under the heading “Fighting Crime
and Corruption”, impose an
obligation on the ANC to take
decisive action against all members involved in corruption including
those who use money to influence
conference outcomes. The second
resolution requires of leaders and members who are alleged to be
involved in corruption to, “where
necessary, step aside,”
pending clearance of their names in connection with the allegations.
[163]
The issue
raised by Mr Magashule concerns the validity of the NEC resolutions.
His case is that the NEC’s resolutions narrowed
down the
resolutions of the 54
th
National Conference and are, therefore,
ultra
vires
the
powers of the NEC. In essence, the contention is that the NEC’s
resolutions amended the 54
th
National Conference’s resolutions, even though it was not
empowered to do so.
[164]
Mr Magashule contended that the first amendment by the NEC which had
the effect of “narrowing
down” the four resolutions
happened at the meeting held on 31 July to 2 August 2020.
[165]
Mr
Magashule contended that the second amendment, having the effect of
limiting the four resolutions, was done at the NEC meeting
held
between 28 and 30 August 2020.
[55]
The NEC decided that members who were formally charged with
corruption or other serious crimes were required to immediately step

aside. In contrast, those who were reported to be involved in
corruption and other serious crimes, but who were not formally
charged,
were not required to immediately step aside. Instead, they
would be provided with an opportunity to explain themselves before
the
Integrity Commission – it was only if they were unable to
provide an acceptable explanation that they might face suspension.
[166]
It was argued that the NEC, in its resolutions, impermissibly made
the step-aside principle peremptory
only against members formally
charged with corruption or serious crimes, and absolved those who
were “alleged to be involved
in corrupt activities”.
Those who were involved in corrupt activities were only required to
appear before the Integrity Commission,
according to Mr Magashule.
[167]
It is argued in the heads of argument, on behalf of Mr Magashule,
that the consequences of the alleged
narrowing of the 54
th
National Conference’s resolutions are the following:
“
84.1.
Anyone accused of involvement in corrupt activities would be absolved
from the application of the step-aside rule;
84.2.
All those accused of corruption and other serious crimes against the
people, including those charged in
courts, are directed to step aside
without more;
84.3.
All those facing disciplinary and investigative procedures will be
absolved from the rule;
84.4.
The right to proffer an acceptable explanation by those who face or
[sic] prosecutorial procedures as guaranteed
in resolution 3 was
removed in its entirety;
84.5.
Those charged in court who fail to step aside must be suspended in
terms of Rule 25.70. In so doing the
NEC repurposed the
constitutionally prescribed process set out in Rule 25.70. Whereas
suspension in terms of the rule is not mandatory,
the NEC overrode
that and replaced it with a mandatory requirement to suspend.”
[168]
It was further argued that the amendment or “narrowing down”
of the resolutions also impacted
Rule 25.70 of the ANC constitution.
[169]
It is common cause that only the National Conference, as the highest
structure of the ANC, can amend
its resolutions. In other words, the
NEC does not have the power to amend the resolutions of the National
Conference.
[170]
The respondents argued that the NEC did not amend or narrow down the
54
th
National Conference’s resolutions. The NEC
resolutions, according to them, were in the form of guidelines
intended to “put
flesh to the bones of the principles adopted
by the National Conference.”
[171]
From a
reading of the 54
th
National Conference resolutions, it is apparent that they were
formulated as broad and general principles. They do not constitute
a
rule or determine the procedure to be followed in each case. For
instance, paragraph 2 of the four resolutions makes reference
to
those, “accused of, or reported to be involved in, corrupt
practices...”.
[56]
It
does not provide the specifics as to who would report the corruption,
what form the report would take, and to whom the report
would be
made. Similarly, paragraph 3 refers to people who “face
disciplinary, investigative or prosecutorial procedures.”
[57]
It does not state who should provide the explanation, nor does it
indicate to whom the explanation must be made. What is clear,
is that
these are principles reflecting the concern with the scourge of
corruption within the ANC. The 54
th
National Conference’s report reflects that the ANC had taken an
unequivocal stand in dealing with corruption and sought to
eradicate
it.
[58]
[172]
It seems clear that the 54
th
National Conference adopted a
principle but did not formulate the procedures or guidelines. It left
it to the NEC to give substance
to the principle and implement it by
the adoption of appropriate rules. The NEC then adopted the
Guidelines in February 2021.
[173]
Turning to the development and the formulation of the Guidelines by
the NEC, we disagree with Mr Magashule
that the Guidelines should be
read as an amendment, repurposing, or narrowing down of the 54
th
National Conference’s resolutions.
[174]
As alluded to earlier, in giving effect to the step-aside principle,
the NEC developed the implementation
guidelines, which distinguished
between: (a) those members formally charged with corruption or other
serious crimes; (b) those
not formally charged but accused of
involvement in corruption and criminal activities; and (c) those
convicted of criminal offences.
[175]
There can be no doubt from a reading of the minutes of the NEC
meeting of 13 to 14 February 2021 that,
in adopting the Guidelines
developed by a team led by the Treasurer General, the NEC intended to
do nothing more than establish
procedures to implement the four
resolutions of the 54
th
National Conference. Accordingly,
the minutes of the meeting show that the NEC intended the Guidelines
to give proper effect to
the 54
th
National Conference
resolutions in that: -
(a)
The NEC reaffirmed the 54
th
National Conference
resolutions; and
(b)
The NEC adopted the Guidelines which it described as “the
guidelines
on implementing resolutions of the 54
th
National Conference”.
[176]
The Guidelines are what they purport to be, and their purpose
appeared in the analysis of the 54
th
National Conference’s
report wherein the resolutions were intended to give effect to the
step-aside principles, this was
also recorded in the minutes of the
NEC.
[177]
The other point made by Mr Magashule in support of his contention
that the Guidelines amounted to
a “repurposing” of the
54
th
National Conference resolutions, is that the
Guidelines excluded certain categories of members envisaged in the
54
th
National Conference resolutions. In this regard, the
Guidelines distinguished between members who had been charged with
corruption
or other serious crimes, and those who had been accused of
such, but not indicted. They thus did not exclude any persons that
were
accused of being involved in any form of corruption.
[178]
The distinction in the categorisation and approach in dealing with
the two groups, in our view, is
logical and rational. The Guidelines
do not change the substantive aspects of the resolutions of the 54
th
National Conference. What the Guidelines do, is to introduce two
distinct procedures to deal with the implementation of the four

resolutions. For those who have been indicted, formal investigations
have already been conducted by the NPA, and a decision made
to
proffer formal charges against them. The allegations against them at
this stage are elevated to the level of formal criminal
proceedings
before a court.
[179]
As set out
earlier in the judgment, the Guidelines provide that members who are
indicted are required to immediately step-aside,
pending the
finalisation of their case. Where they fail to do so, the SG or NWC
may refer the matter to the Integrity Commission,
who considers the
matter and makes recommendations to the NEC. The NEC makes a decision
after deliberating the recommendation.
In the event that the NEC
directs the member to stand down, and they fail to do so, they may be
suspended in terms of Rule 25.70.
Furthermore, the Guidelines provide
that a member who has been indicted may also face disciplinary
processes within the ANC for
misconduct in breach of Rule 25.70.
[59]
[180]
In respect
of members facing the allegations of corruption or other serious
crimes, but who have not yet been indicted, the Guidelines
prescribe
a separate procedure. An initial investigation is conducted, then,
depending on the outcome of the investigation, the
matter may be
referred to the Integrity Commission, which may provide a report with
recommendations to the NEC (or other relevant
body). The NEC will
consider the report and, guided by the recommendations of the
Integrity Commission, make a determination as
to how the matter
should be dealt with going forward.
[60]
[181]
In light of the above analysis, we believe that Mr Magashule’s
contention that the Guidelines
do not give full and proper effect to
the step-aside principle is unsustainable. In our view, the validity
of the Guidelines would
not be substantially impacted negatively,
even if it was found that they did not give full and proper effect to
the step-aside
principle. If that was the case, then the remedy would
not be to invalidate the Guidelines, but rather to supplement them or
compel
the NEC to implement those parts of the resolutions that the
Guidelines may have left out.
[182]
The contention of Mr Magashule is also not sustainable when regard is
had to the fact that Rule 25.70
of the ANC constitution limited its
application to those members who had “been indicted to appear
in a court of law”
on any charge. The authority of the NEC and
the power it exercised in adopting the guidelines is clear; it had
to, out of necessity,
calibrate its Guidelines with the provisions of
the ANC constitution. It is to be noted that the resolutions of the
54
th
National Conference did not have the effect of
amending Rule 25.70 and thus the ANC was itself bound by its
constitution. Mr Magashule’s
suspension accordingly falls
squarely within the provisions of the Rule.
[183]
It is important to note that, as one of the Officials, Mr Magashule
participated in the process of
the development and adoption of the
Guidelines. There is no evidence that he ever challenged the extent
of or the validity of the
Guidelines during this process. The issue
of the validity was also not raised during the meeting with the
Integrity Commission.
He instead informed the Integrity Commission
that he would comply with the step-aside principle.
Mr
Magashule's suspension
[184]
Reverting
to the issue of whether
audi
alteram
partem
applies
automatically in cases of precautionary suspension, it is clear that
previously some authorities, such as
Muller
v Chairman, Ministers’ Council, House of Representatives
,
[61]
supported the approach that it was required. In that case, the court
held that the interests of fairness demanded a hearing before

suspension.
[62]
It should be
noted that the court in that case granted an urgent interdict in
which the applicants were officers in the public
service.
[185]
In holding
that
audi
was required in suspension cases, the court in
Muller
rejected
the approach which had been adopted in the English case of
Lewis
v Heffer and Others,
[63]
that
audi
did not apply in cases of suspension provided for in the relevant
legislation.
[186]
The correct
approach to adopt currently is set out, as stated earlier, in
Long
v South African Breweries
,
[64]
where the Constitutional Court upheld the decision of the Labour
Court that an employer was not required to give an employee an

opportunity to make representation prior to a precautionary
suspension. The approach in
Long
would
apply to Mr Magashule’s case as his suspension was
precautionary. The suspension was in the interests of the ANC to

address the risk which, on the facts, it faced. The 30-days’
notice to step aside served as an additional advantage to
Mr Magashule
which he could have used to make his
representations as to why he believed the suspension was
inappropriate.
[187]
In the circumstances, we find that
audi
was not required prior
to the suspension of Mr Magashule. It should be noted that it was not
Mr Magashule’s case that the
suspension was not warranted on
the basis that there were no justifiable reasons for it.
[188]
In the
event it is found that Mr Magashule, on the facts and the
circumstances, was entitled to
audi
,
we find, for the reasons appearing below, that he was afforded a
hearing before his suspension.
[189]
The question of a hearing, in the context of a suspension, entails
whether Mr Magashule was given
information underlying the
reasons for the proposed suspension and whether he was afforded an
opportunity to make representations
as to why he should not be
suspended.
[190]
The answer
as to whether he was afforded a hearing before the suspension has to
be found in the nature of
audi
as an
aspect of natural justice. In its application, it is a flexible rule
that does not require rigid and formalistic procedures.
In this
respect, the Labour Court in
Mabilo
and Another v Mpumalanga Provincial Government and Others
accepted that there is a need for flexibility when considering the
one facet of the rules of natural justice, being,
audi
alteram partem
.
[65]
Thus, in assessing whether a person was afforded a hearing, the court
has to consider the totality of the facts and circumstances
of each
case. In this respect, author Cora Hoexter states in
Administrative
Law in South Africa
:-
“
Procedural
fairness in the form of
audi
alteram partem
is concerned with giving people an opportunity to participate in the
decisions that will affect them, and — crucially —
a
chance of influencing the outcome of those decisions.”
[66]
[191]
The learned author further states that: -
“
Fairness
is a highly variable concept. In South African law what makes a
hearing ‘fair’ has always depended on the circumstances,

and that holds true today. Our courts readily accept that fairness is
not something that can be reduced to a one-size-fits-all
formula.
While placing emphasis on fundamentals such as notice of threatened
action and an opportunity to make representations
to the relevant
administrator, they have refused to lay down rigid rules concerning
the content of fairness.”
[67]
[192]
In our view, whilst the above is set out in the context of
administrative law, the same principles
apply in the broader context.
[193]
In considering the facts and circumstances of this case, it is clear
that Mr Magashule was indeed
afforded a hearing before he was
suspended. He participated in all the processes relating to the
development, formulation, and
adoption of the resolutions of the 54
th
National Conference regarding this matter, including the resolutions
of the NEC that resulted in the formulation of the Guidelines
on the
implementation of the step-aside principle.
[194]
In considering the above, it cannot be said that Mr Magashule was not
aware that he was a “candidate”
for suspension. He was
aware, or ought to have been aware, that he fell into the category of
members of the ANC who had been indicted
for serious criminal
offences, and that he would be expected (in the first instance) to
voluntarily step aside within 30 days from
the date of the
resolution, failing which he would be suspended.
[195]
The above analysis clearly reveals that Mr Magashule was fully armed
with the information that his
failure to step aside voluntarily would
possibly lead to his suspension. He was aware of, and knew, that the
reason for his suspension
would be that he was indicted for serious
offences, including corruption. The question that then arises in the
context of assessing
whether he was afforded a fair hearing before
his suspension, is whether he was afforded an opportunity to show
cause why he should
not be suspended.
[196]
In our
view, the totality of the facts and circumstances of this case do not
support the proposition that Mr Magashule was not allowed
to state
the reasons why he should not be suspended. He was afforded ample
opportunity, at various levels of the process leading
to his
suspension, to make representations as to why he should not be
suspended. He had a chance to state his case on 12 December
2020 when
he appeared before the Integrity Commission. In this respect the
report of the Integrity Commission indicates that he
participated
fully in the meeting, was well prepared, thorough and that his
presentation was comprehensive.
[68]
It should be recalled that the Integrity Commission recommended that
he be suspended, and also that he had informed it that he
would step
aside if the NEC required him to do so.
[197]
The suggestion by Mr Magashule’s counsel that the report of the
Integrity Commission is irrelevant
because the decision-maker
suspending him was the NEC is unsustainable. The ANC runs most of its
affairs through structures and
subcommittees. The Integrity
Commission is one of such structures whose responsibility it is to
deal with the integrity of the
ANC members that may, amongst others,
be indicted to appear in court on the issue of corruption.
[198]
Mr Magashule was present when the Guidelines for the step-aside
principle were adopted. There seems
to be no doubt that he would have
appreciated during the deliberations that he would be suspended once
the Guidelines were adopted,
unless he was to step aside voluntarily.
[199]
The opportunity to make representations about his suspension availed
itself again at the NEC meeting
of 26 to 29 March 2021. The most
important aspect of this meeting is a resolution that the step-aside
principle should be implemented.
As stated earlier, the resolution
unequivocally required members who had been charged with corruption
or other serious crimes to
step aside within 30 days, failing which
they should be suspended in terms of Rule 25.70 of the ANC
constitution. The only reasonable
inference to draw from this
resolution is that Mr Magashule was aware that he would be suspended
if he did not voluntarily step
aside.
[200]
Mr Magashule had a further opportunity to make representations
regarding the suspension on 12 April
2021, when the NWC confirmed
that those indicted for corruption for serious offences would be
suspended if they did not voluntarily
step aside within 30 days of
the date of that resolution.
[201]
In addition to the above, Mr Magashule had the opportunity to make a
representation regarding his
suspension at the following meetings:
(a)
The meeting with the DSG and the Treasurer General during the first
or
second week of April 2021, where he was advised to step aside.
(b)
The meeting with Officials on 2 May 2021. The purpose of that meeting
was for Mr Magashule to give feedback on his meeting with the
former leaders of the ANC regarding the issue of stepping aside,
and
what their views were regarding him being required to step aside. The
DSG states in the main answering affidavit that, “[w]e
gave him
[Mr Magashule] audience.” There is no evidence as to why he did
not use that opportunity to make representations
as to why he
believed that suspension would be inappropriate in the circumstances.
(c)
The last meeting which Mr Magashule attended before his suspension
was
that of the NWC on 3 May 2021, where it was resolved that the
step-aside resolution would be implemented. It was specifically
resolved
at the meeting that those who have been charged with
corruption or other serious crimes would be suspended in terms of
Rule 25.70
of the ANC constitution. At this meeting, the NWC
instructed Officials to issue letters of suspension to the affected
persons.
It was clear at the end of the meeting that the decision to
suspend him was taken, and a letter to that effect would be sent to

him.
[202]
In addition to the above, it is important to note that at the NEC’s
special meeting of 8 to
10 May 2021 it recorded the following:
“
26.
The NEC noted that the Terms of Reference and Rules of Procedure of
the Integrity Commission provide
that any member may appeal against a
decision of the Integrity Commission to the NEC and that the NEC is
the final arbiter of appeals
against Integrity Commission decisions.
27.
Furthermore, the Guidelines and Procedures on Stepping Aside provide
that: ‘
When a member, office-bearer or public representative
wishes to appeal the findings and recommendations of the Integrity
Commission,
the NEC or PEC may establish an independent committee to
review the findings and recommendations of the Integrity Commission,
and
to report to the NEC. Once this process has been exhausted the
NEC shall take a final decision on the matter.’….”
[203]
It is important to note that there is no evidence that Mr Magashule
took any of the steps mentioned
above.
[204]
In conclusion, not only do we find that if Mr Magashule was for any
reason entitled to
audi
, he was indeed afforded same, we also
find that in the circumstances of his case, taking into account his
position in the ANC;
the serious nature of the charges against him;
the interests of the ANC in ensuring that corruption is acted upon
swiftly and efficiently;
and that the ANC decided that its interests
would be adversely affected if he was to remain in his position, we
are satisfied that
the suspension was both fair and lawful. We also
find that any prejudice that Mr Magashule may have suffered was
ameliorated by
the fact that his suspension is with pay as envisaged
in
Long
.
The
DSG’s authority to suspend Mr Magashule
[205]
The other two grounds upon which Mr Magashule challenges his
suspension are: (a) non-compliance
with Rule 25.70; and (b)
non-compliance with Rule 16.9 of the ANC constitution. He contends,
in this regard, that Ms Duarte
did not have the power to suspend
him, because there was lack of compliance with the provisions of both
Rule 25.70 and Rule
16.9 of the ANC constitution.
[206]
Rule 16.9 sets out the powers of the DSG and provides as follows:
“
The
Deputy Secretary General shall assist the Secretary General, deputise
for him or her, when necessary, and carry out the functions
entrusted
to the Secretary General by the National Conference, the National
Council, the NEC, or the NWC and shall be an
ex-officio
member
of the NWC.”
[207]
Mr Magashule contends, in relation to the provisions of Rule
25.70, that it is only the Secretary
General acting under authority
of the NEC and the NWC at national level that is authorised to
suspend members. At the provincial
level, it is the Provincial
Secretary acting on the authority of the PEC and the PWC who can
suspend members. The power to suspend,
according to him, rests
exclusively in the Secretary General.
[208]
He argues further that neither the NEC nor the NWC has the power to
authorise any official or individual
to exercise the power to
suspend. Put in another way, no one except the Secretary General has
the power to suspend in terms of
the ANC constitution. This means,
that in suspending him in terms of Rule 25.70, the DSG acted
ultra
vires
the ANC constitution.
[209]
In our view, the above contention has no merit. Mr Magashule’s
suspension must be understood
within the context where the NEC, at
its meeting of 26 to 29 March 2021, resolved that all its members who
had been charged with
corruption or other serious crimes must step
aside within 30 days – failing which they would be suspended in
terms of Rule
25.70 of the ANC constitution.
[210]
It is not in dispute that Mr Magashule is one of the members who had
been charged with corruption.
He was, accordingly, one of the members
of the ANC who was expected to step aside or face a suspension.
[211]
The decision that members charged with corruption should step aside
or be suspended was confirmed
by the NWC at its meeting of 12 April
2021.
[212]
The NWC, further at its meeting of 3 May 2021, confirmed the decision
of the NEC of 26 to 29 March
2021, that those accused of corruption
should step aside or face suspension. It was also decided to
implement that decision and
issue an instruction, “…that
the necessary letters must be written to the affected members…”
by the office
of the Secretary General.
[213]
The DSG implemented the decision of the NEC and NWC and issued the
letter suspending Mr Magashule.
[214]
In the answering affidavit, deposed to by the DSG, Ms Duarte states
that she issued the letter of
suspension following the decision of
the NWC that it was in the “best interest” of the ANC
that Mr Magashule should
be suspended. She further stated that
she was “equally satisfied” that it was in the best
interest of the ANC to suspend
Mr Magashule. Mr Magashule
did not dispute that it was in the best interest of the ANC that he
should be suspended. This
in our view, satisfies the jurisdictional
requirements under Rule 25.70 of the ANC constitution.
[215]
The contention by Mr Magashule that his suspension was unlawful for
lack of compliance with the requirements
of Rule 25.70 has no merit
and thus stands to be rejected.
[216]
We now turn to Mr Magashule’s contention that in terms of Rule
16.9 of the ANC constitution
it is only him and him alone, as the SG
of the ANC, that can affect suspension of members of the ANC.
[217]
In terms of Rule 16.9 of the ANC constitution, the DSG may deputise
the SG when necessary and may
carry out the functions of the SG so
entrusted by either the NEC or NWC. The respondents contended that
the power of the DSG in
general, is to “deputise for the SG, to
stand in, or to act as a substitute for the SG.”
[218]
It is clear
on the facts of this case that the NEC or the NWC could not issue the
instruction that Mr Magashule should suspend himself.
This would have
placed him in a situation of conflict of interest - as was found in
Mthimunye-Bakoro
v Petroleum Oil and Gas Corporation of South Africa (SOC) Limited and
Another
.
[69]
In this respect the court in that case held that
“[u]nder
common law a director may not place herself in a position in which
she has, or can have, a personal interest, which
conflicts or
possibly conflicts with her duties to the company.”
[219]
Similarly
in
President
of the Republic of South Africa v Office of the Public Protector and
Others
,
[70]
the court found that although the President had the power to appoint
the judicial commission of inquiry into the allegations of
State
capture, he could not do so as he was implicated in the improper
conduct referred to in the Public Protector’s remedial
action.
The court agreed with the Public Protector’s remedial action
that although, in law, the power to appoint commissions
of inquiries
vested with the President, he was so conflicted that it would be
improper for him to exercise the power. In this respect
the court
said: -
“
The
President has a clear personal interest in the outcome of the
commission. The President is implicated in the “State Capture”

Report and is at the centre of the allegations regarding the Gupta
family’s involvement in the appointment of Cabinet Ministers.

Moreover, his son’s business interests are heavily implicated
by the allegations regarding the award of contracts by SOEs
to
Gupta-owned businesses.”
[71]
[220]
The discretion to delegate the power and authority to issue the
letter of suspension rested with the
NEC and the NWC. Accordingly,
the DSG had the authority and power to issue Mr Magashule with the
letter of suspension once so delegated
by the relevant structures.
The suspension of Mr Magashule cannot be set aside on this ground.
Whether
the suspension of Mr Ramaphosa is valid until set aside
[221]
Mr Magashule issued Mr Ramaphosa with a letter of suspension on 5 May
2021. The respondents challenged
Mr Magashule’s authority to
suspend Mr Ramaphosa, contending that he was not authorised to
do so by the NEC or NWC.
[222]
In this letter Mr Magashule made two claims: -
(a)
The first was that he acted on the authority of the NWC; and
(b)
The second was that he suspended the President of the ANC in terms of
Rule 25.70.
[223]
He stated in his founding affidavit that he acted reluctantly “and
only out of a sense of duty”
because the NWC had instructed him
to do so. This was untrue.
[224]
Mr Ramaphosa contends that Mr Magashule’s purported suspension
of him as the President of the
ANC under Rule 25.70 was fatally
flawed for the following reasons:-
(a)
Mr Ramaphosa has not been indicted on any charge. He was accordingly
not
eligible for suspension under Rule 25.70;
(b)
Neither NEC nor the NWC authorised Mr Ramaphosa’s suspension as
required by Rule 25.70;
(c)
Mr Magashule failed to exercise the discretion required by Rule
25.70;
(d)
Mr Magashule’s purported suspension of Mr Ramaphosa was done in
bad faith and with the ulterior purpose of retaliation. The President
put it as follows:
“
The
circumstances and manner of his suspension of me made it quite clear
that the applicant acted out of vengeful spite against
the decision
of the NWC that he be suspended together with all those members who
had been charged with corruption and other serious
offences but had
failed to step aside.”
[225]
Thus, Mr Ramaphosa contends that Mr Magashule’s purported
suspension of Mr Ramaphosa was fatally
flawed.
[226]
In Mr Magashule’s replying affidavit, heads of argument and his
submissions to the Court, Mr
Magashule changed course and contended
that he, in fact, suspended Mr Ramaphosa under authority delegated to
him by the NEC on
18 January 2018. At such meeting it was resolved
that: -
“
The
NEC delegates to the Secretary General and the National Officials the
power to take all steps Necessary or warranted for the
due fulfilment
of the aims end objectives of the ANC and the due performance of the
NBC's duties and to provide reports to the
NEC from time to time in
this regard”.
[227]
Mr
Magashule relies on
Latib
v The Administrator, Transvaal
,
[72]
which he argues entitles him to jettison his old case and adopt a new
one in this way. The court stated in
Latib—
“…
where
there is no direction in the statute requiring that the section in
terms of which a proclamation is made should be mentioned,
then, even
though it is desirable, nevertheless there is no need to mention the
section and, further, that, provided that the enabling
statute grants
the power to make the proclamation, the fact that it is said to be
made under the wrong section will not invalidate
the notice.”
[73]
[228]
Mr Ramaphosa contends that reliance on
Latib
is ill-conceived.
As Justice Cameron stated in
Howick District Landowners
Association v Umngeni Municipality
: -
“
The
doctrine does not validate action taken in deliberate reliance on a
provision that does not authorise it, even where another
provision
exists that may warrant it…. Nor can an original, general
power to act cure an invalid exercise of a specific
power…. In
Harris
,
as in
Quid
Pro Quo
,
there was no question of a mere administrative error or oversight:
the decision-maker deliberately chose to act in terms of a
provision
that did not authorise what was sought to be done. In dealing with an
argument based on
Latib
,
the CC pointed out that its applicability ‘must depend on the
particular facts of each case, especially whether the functionary

consciously elected to rely on the statutory provision subsequently
found to be wanting’. Applying
Quid
Pro Quo
,
the CC held that it was not open to the decision-maker now to rely on
a different provision to validate what had been invalidly
done under
the provision invoked: the otherwise invalid notice could not be
rescued by reference to powers the decision-maker might
possibly have
had but failed to exercise. I do not read
Harris
as putting
Latib
in
doubt, but as confirming the proper scope of its application.”
[74]
[229]
Mr Ramaphosa contends that, in any event, Mr Magashule’s new
case is fatally flawed for the
following reasons:
(a)
First, an
applicant may not raise a new cause of action in reply;
[75]
(b)
Second, because Mr Magashule only raised his new case in reply,
without
proof that the NEC indeed delegated powers to him as he
claims, and whether the delegation is still in force;
(c)
Third, whatever the scope of the NEC’s delegation, it could not
and did not vest Mr Magashule with a power to override the decisions
of the NEC and the NWC as he purported to do in this case.
His
purported suspension of Mr Ramaphosa flew in the face of their
decisions. They could not authorise him to act in defiance of
the
authority of the NEC and the NWC. Such a delegation would be wholly
unconstitutional; and
(d)
Fourth, Mr Magashule did not purport to act under the delegated
powers.
They allowed him only “to take all steps necessary or
warranted for the due fulfilment of the aims and objectives of the
ANC and due performance of the NEC’s duties….”.
However, when he suspended Mr Ramaphosa, Mr Magashule purported
to
act under Rule 25.70 and not under this delegated power. He therefore
did not, at the time, apply his mind to the question of
whether the
suspension of Mr Ramaphosa was “necessary or warranted for the
due fulfilment of the aims and objectives of the
ANC and the due
performance of the NEC’s duties….” He accordingly
cannot claim to have acted under that power.
[230]
Mr
Magashule contends that Mr Ramaphosa did not seek to declare his
suspension invalid. He thus contends that that the suspension
must be
deemed to be valid and effective until set aside. He relies, in this
regard, on
Oudekraal
Estates (Pty) Ltd v City of Cape Town
[76]
and
MEC
for Health, Eastern Cape v Kirland Investments (Pty) Ltd
,
[77]
where it was stated that “…even an unlawful
administrative act is capable of producing legally valid consequences

for so long as the unlawful act is not set aside.”
[231]
This contention is ill-conceived. The principles elucidated in
Oudekraal
and
Kirland
only apply to administrative
action, that is, the exercise of public power by organs of the state.
This was made clear in
Oudekraal
in a passage cited with
approval by the Constitutional Court in
Kirland
:
“
The
proper functioning of a modern State would be considerably
compromised if all administrative acts could be given effect to or

ignored depending upon the view the subject takes of the validity of
the act in question. No doubt it is for this reason that our
law has
always recognised that even an unlawful administrative act is capable
of producing legally valid consequences for so long
as the unlawful
act is not set aside.”
[78]
[232]
Mr Magashule’s suspension of Mr Ramaphosa, on the other hand,
was the exercise of a private
contractual power on behalf of a
private voluntary association. It was accordingly not subject to the
Oudekraal/Kirland
rule. There was thus no obligation on Mr
Ramaphosa to apply for his suspension to be declared invalid.
[233]
It is Mr Magashule who seeks a declarator of validity in respect of
Mr Ramaphosa’s suspension,
and the Court is obliged to
enquire into the lawfulness of the action in question in respect of
which the declarator is sought.
To that extent there is no substance
to the view advanced by Mr Magashule that, in the absence of a
challenge by Mr Ramaphosa to
his suspension, the Court is obliged to
grant the declarator. If that were so, the Court would be compelled
to grant a declarator
in respect of conduct that is not lawful, and
not administrative action as set out in
Oudekraal
– this
is indeed a startling and unsustainable proposition.
The
withdrawal and apology
[234]
Mr Magashule asks in prayer 2.4 of his Notice of Motion for an order
declaring that the “instruction”
that he apologise for
his purported suspension of the Mr Ramaphosa be declared
“unlawful and unenforceable”. He
contends that if the
relief sought at prayer 2.3 is granted, it will follow that the
purported instructions to withdraw and/or
apologise were baseless and
ought to be declared unlawful.
[235]
He submits further that the letter was written in the
bona fide
belief that it was lawful. The only theory in support of alleged
mala fides
is the “retaliation” theory. He also
contends that the NEC was aware of the nature and extent of the
authority delegated
to him on 18 January 2018.
[236]
Having rejected his submissions in relation to Mr Ramaphosa’s
suspension, his contentions in
this regard are obviously flawed and
there is no basis to grant any relief under this head.
[237]
The respondents contend that the letter the DSG addressed to Mr
Magashule on 12 May 2021 was headed
‘
Request to withdraw and
apologize
’. The body of the letter also made this clear: -
“
The
NEC directed the National Officials to request you to withdraw your
purported ‘letter of suspension’ to the President
and to
apologize publicly to the ANC, its structures and members within a
set timeframe with the proviso that your failure, refusal
or neglect
to do so will constitute misconduct and the ANC should institute
disciplinary action against you in accordance with
the ANC
Constitution.
On
the directive of the National Officials, you are requested to
withdraw your purported ‘letter of suspension’ to the

President and to apologize publicly to the ANC, its structures and
members within 48 hours from the date of this letter.”
[238]
The respondents argue that: -
“
The
NEC had the authority to make the request. It is the highest organ of
the ANC between National Conferences and has the authority
to lead
the organisation, subject to the provisions of the ANC Constitution.
It may discipline any member, including the Secretary
General.
…
in terms of rule 4.16 of
the ANC Constitution, Mr Magashule took an oath as a member of the
ANC to inter alia ‘respect the
Constitution and the structures
and to work as a loyal member of the Organisation’. He is also
required by rule 5.2.7 of
the ANC Constitution to observe discipline,
behave honestly and carry out loyally the decisions of the majority
and decisions of
higher bodies. The NEC is one such higher body.
Respecting
the ANC Constitution and its structures, especially higher bodies,
include respecting the NEC and the request that it
issued when the
ANC Constitution is breached by a member, such as Mr Magashule. Mr
Magashule breached the ANC Constitution when
he unlawfully attempted
to suspend the President.”
[239]
Having found that the purported suspension of Mr Ramaphosa was in
conflict with the ANC’s constitution,
there is no basis to
grant relief setting aside the request to withdraw and apologise. We
are not called upon to determine the
appropriateness of any action
the ANC may wish to take arising from this and do not so. Having
dismissed Mr Magashule’s arguments
on Mr Ramaphosa’s
suspension, it follows axiomatically that prayer 2.4 cannot be
granted.
Conclusion
[240]
In concluding, we have interrogated Mr Magashule’s claim to the
relief he seeks against both
the largely undisputed facts as well as
the applicable legal framework to which reference has been made.
Reverting to the three
imperatives that we set out in the
introduction to this judgment, it is clear that the recognition by
the ANC of the nature and
the extent of corruption and its impact on
society (and on the ANC), triggered the need for decisive action by
the party. On this
score, there appears to be no dispute between the
parties, and the call for decisive action in any event resonates with
the objectives
of the ANC as set out in its constitution, in
particular, the commitment to social justice and the elimination of
inequality.
[241]
Secondly, the important associational and participation rights found
in s 18 and s 19 of
the Bill of Rights create the necessary
space for the ANC to bring together its leadership and members in the
pursuit of a common
vision and common objectives. In doing so the
ANC, through its constitution, created the model and mechanisms best
suited to its
structure and needs. Provided that such a model,
evidenced by the ANC’s constitution, is consistent with the
Constitution
of South Africa and further, provided that the ANC is
loyal to its own constitution, it is largely left to the ANC to best
regulate
its internal functioning. This is what all members of the
ANC sign on to when they elect to be a part of the ANC and this is
the
glue, as it were, that binds them together. It is a choice the
Court must respect within the limits we have described, but it is

also a choice that has consequences for each such member in the
context of their associational rights.
[242]
Finally, we are satisfied, for the reasons that we have given, that
the ANC constitution is consistent
with that of the country and that
the decision to suspend Mr Magashule was: (a) effected in terms
of the ANC constitution;
(b) was precautionary in nature; and (c)
complied with the law relevant to precautionary suspensions. However,
in fairness to Mr
Magashule, we have also satisfied ourselves that
his suspension accorded with the principles of natural justice in the
event that
we may have erred in characterising his suspension as
precautionary. In finding that there was no basis to confirm the
purported
suspension of Mr Ramaphosa, we pointed out that the
mandatory requirements to effect such a suspension in terms of Rule
25.70 were
absent. There could therefore be no basis to activate Rule
25.70 as Mr Magashule purported to do in support of his decision to
suspend Mr Ramaphosa.
[243]
It is for these reasons, which are fully dealt with in this judgment,
that the relief sought must
be refused.
[244]
The application accordingly falls to be dismissed. Mr Magashule has
not made out a case for the relief
he seeks and, in particular, has
not shown that: -
(a)
the ANC step-aside rule or regime and/or Rule 25.70 of the ANC
constitution
is unlawful, unconstitutional, invalid and null and/or
void
ab initio
;
(b)
the suspension letter issued to him by the DSG, Ms Duarte, on 5 May
2021
is unlawful, unconstitutional, invalid and null and/or void
ab
initio
;
(c)
the suspension of Mr Ramaphosa should be considered valid and/or
effective
until lawfully nullified; and
(d)
the request for him to apologise for issuing the suspension letter to
Mr Ramaphosa, and to withdraw the letter, is unlawful and
unenforceable and should be set aside.
Costs
[245]
There is no reason to depart from the principle that costs should
follow the result and all the parties
take the view, with which we
agree, that the nature of the matter and the legal issues involved
warrant the costs of three counsel.
These costs should, however,
exclude the duplicated documents which we have dealt with in the
application to strike out.
Order
[246]
We accordingly make the following order: -
1.
The application to strike out is dismissed with costs, including the
costs of
three counsel, which costs are to exclude the costs of the
duplicated documents as set out more fully in Annexures A and B to
the
Notice in terms of Rule 6(15).
2.
The application for condonation by Mr Ramaphosa in respect of the
late filing
of his answering affidavit is granted.
3.
The application incorporating the relief sought in paragraphs 2.1 –
3 of
the Notice of Motion, is dismissed with costs, including the
costs of three counsel.
____________________________
J
KOLLAPEN
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
_____________________________
SE
WEINER
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
____________________________
E
MOLAHLEHI
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of hearing:

24-25 June 2021
Date
of judgment:

9 July 2021
Appearances:
Counsel
for the applicant:

DC Mpofu SC
M Sello SC
M Qofa
Z Khumalo
Attorney
for the applicant:

Mabuza Attorneys
Counsel
for the respondents:

W Trengove SC
N Maenetje SC
F Nalane SC
B Lekokotla
Attorney
for the respondents:

Ledwaba Mazwai Attorneys
[1]
My
Vote Counts NPC v Speaker of the National Assembly and Others
[2015]
ZACC 31
;
2015 (12) BCLR 1407
(CC) at paras 32 33.
[2]
See
Ramakatsa
and Others v Magashule and Others
[2012]
ZACC 31
;
2013
(2) BCLR 202
(CC) at para 79.
[3]
“
The
Secretary General is the chief administrative officer of the ANC. He
or she shall:
16.6.1 Communicate the
decisions of all national structures of the ANC on behalf of the
NEC;
16.6.2 Keep the minutes
of the National Conference, the National General Council, the NEC,
the NWC, as well as other records of
the ANC;
16.6.3 Conduct the
correspondence of the NEC and the NWC and send out notices of all
conferences and meetings at the national
level;
16.6.4 Convey the
decisions and instructions of the National Conference, the National
General Council, the NEC and the NWC to
the Provincial Executive
Committees and see to it that all units of the ANC carry out their
duties properly;
16.6.5 Prepare annual
reports on the work of the NEC and the NWC and such other documents
which may, from time to time, be required
by the NEC and the NWC;
16.6.6 Present to the
National Conference and National General Council a comprehensive
statement of the state of the organisation
and the administrative
situation of the ANC.”
[4]
Rule
16.9 is dealt with in more detail later in the judgment.
[5]
Rule
10.1 of the ANC Constitution provides: “The National
Conference is the supreme ruling and controlling body of the ANC….”
[6]
See
“officials” as set out in the definitions section of the
ANC Constitution.
[7]
Mr Magashule submitted that Appendix 3 to the ANC Constitution, in
particular, embodies the principles of natural justice. Appendix
3
is discussed below in further detail.
[8]
Section
172(1)(a) provides: “(1) When deciding a constitutional matter
within its power, a court— (a) must declare
that any law or
conduct that is inconsistent with the Constitution is invalid to the
extent of its inconsistency; …”.
[9]
Section
38 of the Constitution, titled ‘Enforcement of rights’
sets out the persons who are entitled to approach the
courts for
relief, including a declaration of rights, where it is alleged that
a right contained in the Bill of Rights has been
infringed or
threatened.
[10]
Section
21(1)(c) of the Superior Courts Act provides: “(1) A Division
has jurisdiction over all persons residing or being
in, and in
relation to all causes arising and all offences triable within, its
area of jurisdiction and all other matters of
which it may according
to law take cognisance, and has the power—
(c)
in its discretion, and at the instance of
any interested person, to enquire into and determine any
existing, future or
contingent right or obligation, notwithstanding that such person
cannot claim any relief consequential upon
the determination.”
[11]
Section 2 provides that: ‘This Constitution is the supreme law
of the Republic; law or conduct inconsistent with it is
invalid, and
the obligations imposed by it must be fulfilled.’ As
previously stated, the rights contained in sections 9,
10, 19 and
35(3), relate to dignity, equality, political rights and accused’s
persons’ rights to a fair trial, respectively.
[12]
Paragraph
3.1.1 of the Guidelines provides: “A member, office-bearer, or
public representative, who has been indicted to
appear in a court of
law on a charge of corruption or other serious crime must
immediately step aside pending the finalisation
of her or his case.”
[13]
Paragraph
3.1.6 of the Guidelines provides: “If a member, office-bearer
or public representative fails to step aside, the
SG or NWC, the PS
or PWC, whichever the case may be, may refer the matter to the
Integrity Commission for it to consider and
make recommendations to
the NEC or PEC.”
[14]
Paragraph
3.1.7 of the Guidelines provides: “The findings and
recommendations of the Integrity Commission will be submitted
to the
NEC or PEC. Once the NEC or PEC has concluded its deliberations, and
taken a decision, the matter will then be made public.”
[15]
Paragraph
3.1.10 provides: “Where a member, office-bearer or public
representative refuses to step aside, notwithstanding
a decision of
the NEC or PEC that he or she should do so, the Organization shall
invoke Rule 25.70 of the ANC Constitution.”
Under the heading “3.2
Temporary suspension following indictment to appear in a court of
law on criminal charges”
are the following subparagraphs:
“
3.2.1
The temporary suspension referred to in Rule 25.70 is effected by
the Secretary General or Provincial Secretary acting on
the
authority of the NEC, the NWC, the PEC or the PWC.
3.2.2 The Secretary
General or Provincial Secretary, acting on the authority of the NEC,
the NWC, the PEC or the PWC, must be
satisfied that the temporary
suspension of such member, office-bearer or public representative
would be in the best interest
of the Organisation.”
[16]
Paragraph
3.3 of the Guidelines.
[17]
Paragraph
3.4.1.1 provides: “Upon the Secretary or Secretary General
becoming aware of an allegation of corruption, or serious
crime
against an ANC member, office-bearer of public representative (‘the
member’), the Secretary or Secretary General
shall perform an
initial investigation and submit a report to the appropriate
structure (NEC / NWC / PEC etc). This report shall
be submitted to
the appropriate structure within 21 days of the Secretary or
Secretary General becoming aware of such allegations.”
Paragraph 3.4.1.2
states: “This report shall detail the allegations that have
been received or that the Secretary or Secretary
General has become
aware of, the identity of the member/members with respect to whom
such allegations apply and a decision as
to whether the Secretary or
Secretary General shall refer such a matter to the appropriate
Integrity Commission. The decision
to refer or not refer a matter to
the Integrity Commission must be reasonable and objective.”
[18]
In
terms of paragraph 3.4.1.3, “The considerations that the
Secretary or Secretary General takes account as to whether to
refer
a matter to the Integrity Commission shall include:
a) The nature of the
alleged conduct with respect to the Code of Conduct, Conference
Resolutions and Decisions of the Structures
of the ANC;
b) The extent or
frequency of such alleged conduct if it is a minor infraction;
c) The source of the
allegation and the veracity of the allegation;
d) The number of
independent sources that are consistent with the original source of
the allegation;
e) The balance of
interests of the member and the organisation in either having the
matter deal in front of the Integrity Commission
immediately or be
delayed till some other process is completed or an imminent event
occurs, as long as such delay is not so long
as to be unreasonable;
f) The impact on
perceptions and reputation of the organisation resulting from the
alleged conduct should it be true;
g) Whether any proof
other than a bare allegation was provided;
h) The role and standing
of the member in the organisation or the State; and,
i) Specific referral
requests by NEC/PEC/REC to deal with matters that result from
agendas or matters arising of these structures.”
[19]
Paragraph
3.4.2.2, titled “IC Decision” provides:
“
3.4.2.2.1
Upon completion of the submission of documentation and or the
conclusion of the hearing or hearings, the IC shall deliberate
on
all evidence and argument heard and received and make a
determination as to whether:
a) The Investigative
Report identifies credible evidence of an infraction and the nature
and detail of such infraction, or the
Investigative Report does not
identify credible evidence of an infraction;
b) The member has
submitted an acceptable explanation and response to the
Investigative Report and or allegations and as a result
no further
action is required;
3.4.2.2.2 lf an adverse
finding is made against the member, recommending that the
NEC/NWC/PEC/PWC/REC/RWC/BEC should request the
member to “Step
Aside” or in the event that the member refuses, that they
proceed with disciplinary action against
the member; and
3.4.2.2.3 Advising that
the NEC/NWC/PEC/PWC should consider suspending the member in
accordance with Clauses 25.56 to 25.69 of
the ANC Constitution, if
disciplinary action is taken.
3.4.2.2.4 The IC shall
then submit their decision to the NEC/PEC/REC/BEC as is appropriate,
through the office of the Secretary
or Secretary General.”
[20]
Rule
6(15) provides that: “The court may on application order to be
struck out from any affidavit any matter which is scandalous,

vexatious or irrelevant, with an appropriate order as to costs,
including costs as between attorney and client.” The court
may
not grant the application unless it is satisfied that Mr Magashule
will be prejudiced if the application is not granted.
[21]
As
appears below, judgment was handed down by the Constitutional Court
in this matter on 1 July 2021 in
The
Public
Protector
v President of the Republic of South Africa and Others
[2021]
ZACC 19
.
[22]
These
include the following documents:
Overview
by Mr Ramaphosa to the Meeting of the NEC – 28 August 2020;
Provincial Reports: Criminal & Disciplinary Cases;
NEC 28-30
August 2020; Indictment in the Matter of the State v 16 Accused in
the Free State High Court; Letter to Provincial
Secretaries and
Co-ordinators of Interim Provincial Committees with annexures; Mr B
Bongo suspension letter with annexures; Confirmatory
Affidavit of
Minister Pandor; Confirmatory Affidavit of Mr Mabuyakhulu;
Supporting Affidavit of Mr Manana; Mr Ramaphosa's submissions
to the
Public Protector; Judgment:
President
of the Republic of South Africa and Another v Public Protector and
Others
[2020] ZAGPPHC 9; [2020] 2 AII SA 865 (GP).
[23]
President
of the Republic of South Africa and Another v Public Protector and
Others
[2020]
ZAGPPHC 9; [2020] 2 AII SA 865 (GP). This judgment was subsequently
upheld on
this
issue in the Constitutional Court (see note 21 above)
handed
down on 1 July 2021. An issue raised by amaBhungane was remitted to
the High Court.
[24]
See
footnote 22 above.
[25]
Republikeinse
Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk
1972 (1) SA 773 (A).
[26]
Matlholwa
v Mahuma and Others
[2009] ZASCA 29
;
[2009] 3 All SA 238
(SCA) at para 8.
[27]
Ramakatsa
(note 2 above) at paras 57 and 72.
[28]
Ibid
at para 72.
[29]
Ibid
at para 79.
[30]
C
Hoexter
Administrative
Law in South Africa
2
ed (2012) at 189 - 193.
[31]
Mashego
v Mpumalanga Provincial Legislature and Others
[2014] ZALCJHB 285; (2015) 36 ILJ 458 (LC) at para 10–11.
[32]
Turner
v Jockey Club of South Africa
1974 (3) SA 633
(A) at 645C-E, quoting from
Jockey
Club of South Africa and Others v Feldman
1942 AD 340
at 350-351.
[33]
Turner
(note 32 above) at 646A-B.
[34]
Modise
and Others v Steve's Spar Blackheath
[2000] ZALAC 1
at para 15.
[35]
Long
v South African Breweries (Pty) Ltd and Others
[2019] ZACC 7
; (2019) 40 ILJ 965 (CC) at paras 24-25.
[36]
Lewis
v Heffer and Others
[1978] 3 All ER 354
at page 364.
[37]
Ramakatsa
(note 2 above) at paras 16 and 72.
[38]
Ramakatsa
(note
2 above) at para 66.
[39]
I
Currie, J de Waal
The
Bill of Rights Handbook
6
ed (2013).
[40]
Ibid
at 397-398 (footnotes omitted).
[41]
Ibid
at 400 (footnotes omitted).
[42]
Ibid
at 406 (footnotes omitted).
[43]
Ramakatsa
(note
2 above) at para 72-73.
[44]
Ramakatsa
(note 2 above) at para 73.
[45]
Ibid.
[46]
Ibid.
[47]
J
Brickhill and R Babiuch ‘Political Rights’, in S Woolman
& M Bishop (eds)
Constitutional
Law of South Africa
2 ed (OS 03-07) at 45-30.
[48]
Ibid
at 45-34.
[49]
The
relevant provision in s 35(3), which deals with arrested, detained
and accused persons, provides as follows:
“
(3)
Every accused person has a right to a fair trial, which includes the
right— (h) to be presumed innocent, to remain silent,
and not
to testify during the proceedings; …”
[50]
Currie
and de Waal (note 39 above) at 755.
[51]
Prinsloo
v Van der Linde and Another
[1997]
ZACC 5
;
1997 (3) SA 1012
(CC) at paras 35-38.
[52]
Section
9(1) provides:
“
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2) Equality includes
the full and equal enjoyment of all rights and freedoms…
(3) … (5)”
Section 10, titled
“Human dignity” provides: “Everyone has inherent
dignity and the right to have their dignity
respected and
protected.”
[53]
S
v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC) at para 142.
[54]
In
Prinsloo
(note 51 above at para 24), the CC noted:
“
It
must be accepted that, in order to govern a modern country
efficiently and to harmonise the interests of all its people for
the
common good, it is essential to regulate the affairs of its
inhabitants extensively. It is impossible to do so without

differentiation and without classifications which treat people
differently and which impact on people differently. It is
unnecessary
to give examples which abound in everyday life in all
democracies based on equality and freedom. Differentiation which
falls
into this category very rarely constitutes unfair
discrimination in respect of persons subject to such regulation,
without the
addition of a further element. . . .”
[55]
See
paras [32] above, which sets out the resolutions in detail.
[56]
See
para [32]
above.
[57]
Ibid.
[58]
See
para [31]
above.
[59]
In
terms of paras 3.1 – 3.3 of the Guidelines. See para [47]
above.
[60]
In
terms of para 3.4 of the Guidelines. See para [48]
above.
[61]
Muller
and Others v Chairman, Ministers’ Council, House of
Representatives, and Others
1992
(2) SA 508 (C).
[62]
Ibid
at 523H.
[63]
Lewis
v Heffer
(note
36 above).
[64]
Long
v South African Breweries
(note 35 above).
[65]
Mabilo
and Another v Mpumalanga Provincial Government and Others
[1999] ZALC 62
;
(1999)
8 BLLR 821
(LC)
at paras 20-21.
[66]
Hoexter
(note 30 above) at 363.
[67]
Ibid
at 363-365.
[68]
The opening paragraph of the Integrity Commission is informative and
apposite of the issue of whether Mr Magashule had the opportunity
to
make out his case as to why he should not be suspended. It states:
“
[t]he
Secretary General met with the Integrity Commission on Saturday 12
December 2020. It was a long meeting and the SG covered
many issues,
His brief to the IC was thorough and comprehensive. He came to the
meeting very well prepared and offered to share
with the IC all the
documentation to which he referred, which he later did.”
[69]
Mthimunye-Bakoro
v Petroleum Oil and Gas Corporation of South Africa (SOC) Limited
and Another
[2015] ZAWCHC 113
;
2015 (6) SA 338
(WCC) at para 59.
[70]
President
of the Republic of South Africa v Office of the Public Protector and
Others
[2017]
ZAGPPHC 747;
2018 (2) SA 100
(GP).
[71]
Ibid
at para 142.
[72]
Latib
v The Administrator, Transvaal
1969 (3) SA 186 (T).
[73]
Ibid
at 190H-191A.
[74]
Howick
District Landowners Association v Umngeni Municipality and Others
[2006]
ZASCA 153
;
2007 (1) SA 206
(SCA) at para 22.
[75]
Gelyke
Kanse and Others v Chairperson of the Senate of the University of
Stellenbosch and Others
[2019] ZACC 38
;
2020 (1) SA 368
(CC) at paras 18-19;
Esau
and Others v Minister of Co-Operative Governance and Traditional
Affairs and Others
[2021] ZASCA 9
;
2021 (3) SA 593
(SCA) at paras 60-61.
[76]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA) at para 26.
[77]
MEC
for Health, Eastern Cape and Another v Kirland Investments (Pty)
Ltd
[2014] ZACC 6
;
2014 (3) SA 481
(CC) para 101.
[78]
Oudekraal
(note
76 above) at para 26
;
Kirland
(note
77 above) at para 101.