Magashule’s lawyer: His suspension infringes on his constitutional rights

Advocate Dali Mpofu said the terms of Ace Magashule’s suspension as ANC secretary general limited his rights to participate in political activity as provided for in the country’s Constitution.

FILE: Ace Magashule. Picture: Kayleen Morgan/EWN

JOHANNESBURG - The High Court in Johannesburg has heard that the terms of embattled ANC secretary general Ace Magashule’s suspension are an infringement on his constitutional rights.

This is according to his legal representative Advocate Dali Mpofu SC, who is arguing for the court to find the suspension imposed on Magashule by the ANC as invalid, unlawful and unconstitutional.

Mpofu said the terms limit Magashule’s rights to participate in political activity as provided for in the country’s Constitution.

Magashule is not allowed to speak on behalf of or on matters involving the ANC, he is not allowed to address party members or to mobilise across any of its structures.

He is on temporary suspension for the next six months after failing to step aside over the corruption charges he is facing.

The ANC versus Mpho Ramakatsa case of 2012 has found expression in Thursday’s court proceedings – this as Mpofu who was also involved in that matter used it once again but on behalf of Magashule.

He told the High Court that the ANC secretary general’s rights had been infringed by the ANC as it refused to allow him to carry out his duties to represent or even mobilise for the organisation.

“We all agree, as we must, that all those four things amount to the limitation or infringement of his right to participate in the political party of his choice.”

The matter is sitting before a full bench of the High Court, with Magashule himself watching on as arguments are made in his defence.

Mpofu - in a back and forth with one of the judges – admitted that this right – very much like others provided for in the Constitution - was not absolute.

But he also emphasised that no one’s rights could be infringed on to the benefit of others or even the public

“If rights can be overridden simply on the basis that the general welfare will be served by the restriction, then there is little purpose in the constitutional entrenchment of rights. What does that mean? It means we might as well take the Constitution and throw it in the dustbin.”

Meanwhile, a handful of supporters gathered outside, with only Carl Niehaus and Joe Maswanganye being the prominent figures to show up in support of Magashule.

Mpofu also said that Magashule’s commitment to lawfully step aside when ordered to do so by national executive committee (NEC) of the party had been conveniently forgotten as the party pushed him out of office

Magashule also wants to test the constitutionality of the ANC’s 2017 step aside resolution and its rule 25.70, which calls for the suspension of members facing criminal charges without giving them an opportunity to appeal the temporary sanction

Mpofu also argued that his client was not instructed to step aside by the NEC of the ANC – which is its highest decision-making body in between conferences - but instead by the national working committee.

Magashule in his own court papers has denied ever refusing to vacate office.

Mpofu said the NEC decision had to be consistent with the law.

“It is like me saying if I am arrested, I will go to jail. I don’t mean that a policeman must just come and grab me and beat me up and put me in the boot, and then he says, ‘But Mr Mpofu, you said that you would gladly be arrested’. Once they overstep the mark of the law, then all undertakings are off.”

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