Dali Mpofu questions late filing of papers in Ace Magashule vs ANC case

ANC president Cyril Ramaphosa and deputy secretary-general Jessie Duarte could not “simply strut along” and file their court papers late without explanation or excuse, said Ace Magashule’s counsel, Dali Mpofu SC, in court on Thursday.

Mpofu was addressing the Johannesburg high court in the suspended ANC secretary-general’s bid to have his suspension set aside and the ANC’s “step-aside rule or regime” declared unconstitutional. Under the step-aside regime, when an ANC member is  charged with a serious criminal offence, they should step aside from their position. If they do not, they may be suspended.

The case is set down to be argued over Thursday and Friday before a full bench of judges Jody Kollapen, Sharise Weiner and Edwin Molahlehi. 

The hearing got off to a slow start on Thursday morning with the court first having to hear and decide three applications to intervene in the case, all of which were dismissed. Magashule’s team then addressed the court on preliminary matters, saying that Ramaphosa and the ANC team had been late with some of their court papers, had duplicated documents and included “irrelevant” material.

Mpofu said court rules were very clear that in urgent cases, time frames for court cases were set by the applicants, even if they were unfair. The rules applied to all litigants, “even if they are kings or paupers”, he said. Mpofu said while it did happen that litigants were late, they had to ask the court for more time or seek condonation for late filing, he said. They could not simply do nothing. 

If the court was not going to disregard the late-filed court papers, then it should at least punish Ramaphosa and Duarte with a punitive costs order, he said.

When asked what prejudice Magashule had suffered as a result, Mpofu said it was for the ANC’s team to show there had been no prejudice, it was not for the “victim” to have to show that there had been prejudice. 

After the lunch break it was expected that Mpofu would get to the heart of the case. Magashule wants the court to declare as unconstitutional the section of the ANC constitution which allows the suspension of an office-bearer who “has been indicted to appear in a court of law on any charge”. 

In his written argument to court, Mpofu said it was “trite law” that political parties may not adopt constitutions that are inconsistent with the constitution of SA. This section of the ANC constitution — “on a strict interpretation and on its terms” — did not afford members under threat of suspension the right to be heard. This was a breach of the principle of natural justice, said Mpofu’s written argument.

Magashule also says the ANC’s step-aside regime, as it is now formulated by the ANC’s national executive committee, has been fundamentally altered from what was envisaged by the ANC at its national conference at Nasrec in December 2017.  

By “repurposing” the step-aside regime, the NEC was acting outside its powers. It “had no authority in law” to do so, said Mpofu in a written argument.

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