Magashule’s senior counsel, Dali Mpofu, told the full bench of the South Gauteng High Court – Judges Jody Kollapen, Sharise Weiner and Edwin Molahlehi – that the governing party did not give his client audi alteram partem (hear the other side).
According to Mpofu, the audi principle comes with a legitimate expectation that one will be listened to.
He also accused the ANC’s national executive committee (NEC) of unlawfully doctoring the resolution taken at the governing party’s national conference in 2017 and gave Magashule 30 days to step aside.
This was after Magashule was charged with fraud, corruption and money laundering charges for his role in the R255 million project to eradicate asbestos roofs in houses in the Free State during his time as the province’s premier.
Mpofu said Magashule had a legitimate expectation that he would be given audi at the NEC meeting held on May 8 to report back on engagements with former ANC leaders Thabo Mbeki, Jacob Zuma, Kgalema Motlanthe and Mathews Phosa.
He said at the May 8 NEC meeting the ANC should have asked Magashule to tell the organisation why he should not be suspended.
”There can be no doubt in any body’s mind that he was given no hearing by the NEC, which is the body that clearly had to make the final decision,” he argued.
Mpofu said Magashule was invited to a meeting of the ANC Women’s League meeting on the Friday before the NEC meeting, which sat the following day, only for his client to be booted before hearing him out and humiliating him.
”Even after the so-called suspension letter is issued (deputy secretary-general Jessie) Duarte calls him and says SG (Magashule) there is going to be regional conferences in the Northern Cape come and authorise them,” he said.
Mpofu also argued that Magashule was invited to a meeting at President Cyril Ramaphosa’s home two days after the 30-day period in which he was set to step aside had expired.
This, Mpofu added, must be taken to be the stance of the ANC that Magashule’s suspension had been suspended and that he was still its secretary-general pending an internal review by the NEC.
He said this showed the absurdity of what was done as Magashule’s suspension stated that he must not hold executive office, represent the organisation publicly and make pronouncements publicly.
Mpofu asked: “How do you suspend someone using rules that still have to be endorsed?”
He said the ANC effectively suspended Magashule with retrospective effect, which he described as a breach of the rule of law.
”It’s just a mess,” said Mpofu.
The ANC Free State provincial chairperson approached the court urgently to have the ANC’s step-aside rule declared unlawful, unconstitutional, invalid and null and/or void ab initio (from the beginning).
Magashule also wants last month’s letter suspending him to be deemed unlawful, unconstitutional, invalid and null and/or void ab initio.
He has asked the court to declare his unilateral suspension of Ramaphosa valid and effective until lawfully nullified, and the ANC’s instruction that he apologise for issuing the letter purportedly suspending the president to be found to be unlawful and unenforceable.
Magashule wants his suspension set aside and uplifted and to be restored to the position or status he held or enjoyed at the ANC’s headquarters Luthuli House as at May 5, the day he was suspended.
The ANC will respond to Magashule on Friday.
Image (Ace Magashule fighting his own party in court).
