Thread by @ermbates

#AceMagashule #AcevsAnc #MagashulevsANC Proceedings have resumed in a virtual sitting of the South Gauteng High Court, in the matter between suspended ANC SG Ace Magashule and the ANC's president, deputy SG, and party itself.

#AceMagashule #AcevsAnc #MagashulevsANC Advocate Mahlape Sello for Magashule is dealing with two outstanding matters of his submissions. She refers to 3 May 2021 minutes of the ANC's NWC which refers to stepping aside not being an indication of guilty or innocence.

Judge Sherise Weiner asks Sello if a "proper disciplinary procedure" was followed with regard to Magashule's suspension. Sello says she will later address the question of audi being invoked (that is: audi alteram partem, let the other side be heard as well, right of reply).

#AceMagashule #AcevsAnc #MagashulevsANC Weiner asks Sello what was the decision of the integrity commission of the ANC with regard to Magashule. Sello begins reading resolutions of the party pertaining to suspension, stepping aside, etc.

Sello submits there was no decision by the integrity commission (which she calls the IC for short). She says "it is necessary to look at what the integrity committee did" and in the second paragraph of its report it records its decision to meet with the ANC president over Bosasa.

She reads from the ANC's integrity report, "The IC first request to meet with comrade president in 2018 when the issues of Bosasa and the CR campaign funds first arose."

"The IC identified this as a very important and sensitive issue for the organisation and anticipated that this was going to damage to the reputation and good standing of the ANC," continues Sello.

"The use of such allegedly huge sums of money for individual leadership campaigns was a departure from the internal democratic procedure of the organisation and was having a negative impact on the organisation," reads Sello.

Sello reads, "It was therefore with great disappointment that the IC when the president explained to the chairperson of the commission that since this was a legal matter he did not think it was right to discuss the CR17 campaign funds until the legal matters were finalised."

She continues reading from the report, "The IC pursued the matter of meeting with the president and requested over an 18 month to meet with president several times both verbally and in writing."

"It did not sit well with the IC that the president especially but also the officials continually referred publicly to the importance of the IC and the work that was being done but in reality there was little to no interaction," she reads.

After reading from the ANC IC's report, Sello tells the court "the suggestion that he did so on his own volition as confirmed by the NEC is wholly inconsistent" with what is recorded in the report.

[MINUTES AGO] Sello notes a report from the IC that it engaged Ramaphosa on 19 November 2020 during a Zoom conference on the #CR17 campaign funding. "The discussion was honest, frank and productive," the IC recorded.

Sello says that the IC expressed concern that there was a departure from the procedure of the organisation. "That is not done," she says. In reply to Weiner's question on the IC decision, it didn't suggest steps be taken against Ramaphosa.

"They couldn't make a finding because they did not consider the issue," says Sello of Ramaphosa and the ANC's integrity body looking into #CR17 funding.

"It is the audi before the IC, yes. Now whether or not the IC did what it was supposed to do when the first respondent presented himself for the purpose is a different issue," says Sello. Justice Edwin Molahleli asks Sello who actually makes the decision to suspend?

[NOTE] Due to connectivity issues and transcribing I am several minutes behind the real time proceedings. You can follow the sitting live via the following stream.

Sello says, "It is incorrect for the first respondent [Ramaphosa] to say that the letter [from Magashule] does not articulate the basis on which he ought to be suspended." It is, she submits, in the first four paragraphs.

Sello says the "matter has not been disposed of, the investigation is still live" in terms of the case over the Public Protector's findings on the CR17 campaign funding and the legal case (subject to an appeal bid) about it.

One of Magashule's lawyers, Sello, tells a full bench Ramaphosa "accepts and publicly declares that he raised R300-million at the very least for the purposes of the campaign" and this was under oath, she emphasises, at the #StateCaptureInquiry.

#AceMagahsule #AcevsANC #MagashulevsANC Sello reads details of the funding and says, "The mobilisation is of branch membership, this is involving the branches and using funds to do that, and conducting constituency work."

"You then have to have regard to what he says in the pleadings," she continues. Referring to paragraph 14 of Ramaphosa's answering affidavit, she says Ramaphosa takes issues with a quotation in the May 5 letter Magashule, that he claims is an ill-intended distortion of the truth.

Sello says that if regard is had to what Ramaphosa said, which she calls "his very own admission and confession" then he has offended certain ANC principles and resolutions on corruption. Judge Jody Kollapen soon interjects.

"It shall constitute involvement in corruption to use money to influence conference outcomes," asserts Sello with reference to Resolution H of the ANC. Kollapen asks, as a matter or principle, what the bench is required to do.

Kollapen says to Sello, "The basis for the suspension is not a conclusion that there has been illegal activity. Correct? The basis for the suspension is that illegal activity has been reported. Correct?"

Sello says the basis for the suspension (in the case of Ramaphosa) is offending Resolution H of the ANC. Kollapen says the court - in this case - is not required to determine whether or not illegal activity has occurred, but whether or not it has been reported.

[MINUTES AGO] Sello refers to Magashule's heads and mention of suspending Ramaphosa. In seeking to suspend Ramaphosa, Magashule invoked two powers. Sello highlights that neither Ramaphosa nor deputy SC Jessie Duarte challenge these powers.

#AceMagashule #AcevsANC #MagashulevsANC "It is an instruction by the NWC and it is the powers of the SG in terms of Rule 16.6.1 of the Constitution of the ANC," says Sello of what she argues her client, Magashule, drew on when suspending Ramaphosa.

Duarte contends Magashule's suspension of Ramaphosa was illegal, notes Sello. She speaks of a 2018 resolution which - as she puts it - seems to be under some cloud of doubt, insofar as how it is characterised by Ramaphosa and Duarte.

The resolution deals with mandating the SG and the deputy SG to institute and defend legal proceedings on the ANC's behalf. The second part, says Sello, says the NEC delegates to the SG the power to take "all steps necessary" or warranted for fulfilment of the ANC's duties, etc.

So, in this part of her oral submissions for Magashule, Sello is addressing the question of (delegated) authority and power to act for the ANC when it comes to legal proceedings.

After urging from Kollapen to conclude, Sello moves on to the issue of withdrawal and apology when it comes to the letter from Magashule to Ramaphosa, and the assertion this letter is valid is based on two grounds.

Sello says in the meeting of 8-10 May:
1. The NEC in taking a contradictory position on this matter as to the validity of the SG's action was wrong in fact and law, and;
2. The process undertaken was vitiated (which means spoiled or impaired) by Ramaphosa's participation therein.

Magashule's lawyer, Sello, asserts (or, argues before a court) his letter of suspension to Ramaphosa is valid for the following reasons.

https://twitter.com/ermbates/status/1408341436593016836?s=20

[SEVERAL MINUTES AGO] Sello argues Ramaphosa should have been recused from the NEC meeting of 8-10 May 2021, from which Magashule was summarily booted out.

"Not only does he participate, he makes the announcement to declare his own innocence. Now, that is the height of conflict of interest," says Sello on Ramaphosa's attendance at the NEC meeting after the 5 May letters.

Sello asserts the setting aside of Ramaphosa's suspension must be validly set aside. In the absence of a counter-application to that effect, she submits, the letter must stand. Sello soon concludes.

[NOTE] A collegial reminder that I am behind the live stream, on account of poor connectivity and transcribing.

Advocate Wim Trengove SC begins his oral submissions for Ramaphosa. He kicks off addressing Rule 25.70 which is the party's step-aside rule. It is both the rule Magashule challenges as constitutionally invalid, and invoked to issue a suspension letter to Ramaphosa.

Trengove says, "I will point out to you from time-to-time that there are extraordinary contradictions in Mr Magashule's own case." Magashule challenges and depends upon Rule 25.70 and, says Trengove, persists in both contentions "despite the fact that they are incompatible."

Temporary suspension, says Trengove, is not punitive or disciplinary. Its purpose is "designed to protect the best interests of the organisation" the ANC.

Trengove addresses the assertion that Rule 25.70 offends the laws (he may have said principles) of natural justice, and raises caselaw on voluntary associations, including a matter about a jockey club.

[MINUTES AGO] Trengove addresses Section 19 of the Constitution, and emphasises it does not mean a member of a political party can never be suspended. This is the section on political choices, the right to form a party, participate in its activities, recruit members and campaign.

Trengove tells the court Mpofu made a concession on Section 19 of the Constitution and retreated (my word, not his) from the "extreme position" at which he started off on this point.

"Section 19 can't impel the constitutionally validity of Rule 25.70," says Trengove. He forecasts the exercise of the power must abide by the principles of natural justice, but the question is: what natural justice requires of the exercise of that power?

Next, he address Section 39 (2) of the Constitution. This pertains to the interpretation of legislation, development of the common law and customary law, inter alia, promoting the spirit, purport and objectives of the Bill of Rights.

Kollapen asks Trengove of his view the averment that Rule 25.70 is a limitation of the right in Section 19 of the Constitution, which - in turn - triggers a Section 36 inquiry.

Trengove shares his view that, "Once there is a limitation, yes, then you have to go to Section 36 [...] but in a case where you don't even get to a limitation [...] then there is no Section 36 inquiry."

In other words, you can only evaluate a limitation on a right (keeping Section 36 in mind) if you establish the right has, in fact, been limited. The first hurdle is establishing as much, then Section 36 can be triggered.

https://twitter.com/ermbates/status/1408349446367293445?s=20

Trengove moves on to the presumption of innocence right, referring - at first - to the presumption of innocence conferred upon and accused person, as laid out in the Constitution of South Africa.

With reference to a Constitutional Court case (Prinsloo v Van der Linde, 1997) Trengove distinguishes the right to presumption of innocence of an accused person in criminal matters versus the rights with regard to civil matters (and in other contexts).

Trengove says this point is such trite law it is hard to find authorities, but the 1997 case above pertains. "It has nothing whatsoever to do with the conduct of disciplinary or civil litigation," he says.

[SEVERAL MINUTES AGO] "We submit, with respect, that as the first attack - the attack on the rule - that there is absolutely no basis for it," says Trengove.

On the step-aside rule, submits Trengove, the assertion that the NEC narrowed down the conference resolution "is simply not correct" on the facts. This in reference to the resolution deriving from the 54th annual conference of the ANC at Nasrec in December 2017.

Court adjourned for a short break and has resumed proceedings in the #AceMagashule #AcevsANC #MagashulevsANC matter. You can following live online via the link below. Kindly note, I am behind proceedings in real time.

[CORRECTION] The conference is national, not annual. Askies.

https://twitter.com/ermbates/status/1408353207269703683?s=20

"These are, all four resolutions, resolutions [...] in the context of declaring war on corruption [...] when you read H you should read the whole of H," says Trengove. The conference resolutions are available online below. joeslovo.anc.org.za/sites/default/…

"That is vote buying that is not aimed at a member of the ANC who hires a hall for a campaign meeting, or hires a stadium for a rally [...] that's vote buying. That is what that is all about," says Trengove. This in reply to submissions by Sello regarding #CR17 campaign funding.

Trengove for Ramaphosa argues the guidelines give full and proper effect to the conference resolutions. "It caters for all people who stand accused of corruption, indicted or not," he says of the guidelines. Trengove challenges an argument the NEC erred in establishing them.

Following the break, Trengove tackles Magashule's challenge to his suspension on the basis it was not valid. "The question is: whether he was entitled to a fair hearing and if he was, whether he got one," he says of one of the grounds Magashule raised.

In the context of the suspension of a member of a voluntary organisation on being indicted for a crime, says Trengove, what constitutes a fair hearing. He asserts Magashule was not entitled to one, and in any case he got one; Magashule, he asserts, was granted ample hearing.

"The integrity commission weren't the final decision makers but they afforded him a hearing and made a recommendation on which the NEC acted," says Trengove. Magashule "was given a fair hearing" and he then refers the court to the integrity commission's report.

Trengove points to a second bullet point in the IC report, which records Magashule stating he was a disciplined member of the ANC and committed to step aside if so instructed by the NEC.

The IC hearing of Magashule, asserts Trengove, had "all the hallmarks" of audi. He contrasts the IC hearings of Magashule and Ramaphosa. "He was put on terms, he realised that what he was there for is to debate the question of whether the NEC resolution against him," he says.

"That was full and wholesome audi," says Trengove. He adds Magahsule was a member of the NEC at "every step of the way" including when it adopted the guidelines, and - therefore - had an opportunity to express his opinion on them.

Kollapen asks Trengove: to the extent that those NEC meetings did not discuss individual cases would it have been appropriate for Magashule to advance his particular case, and would that then constitute a fair opportunity in terms of audi?

Molahleli asks Trengove about an argument by counsel for Magashule that the ultimate decision to suspend was taken by the NEC, and the assertion that the failure thus happened at the NEC level. What is Trengove's response?

Trengove refers to a "critical NEC meeting" of 3 May 2021, at which the NEC determined to implement the resolution. That occurred, emphasises Trengove, with Magashule present.

"He was in this unusual position where he actively participated in the decision-making process, the decision-making structures [...] that was far more than audi ever requires," says Trengove of Magashule's membership of the NEC.

[SEVERAL MINUTES EARLIER] Molahleli asks Trengove if flexible rules of audi apply if it isn't a disciplinary process. "The rules of fundamental justice did not require any hearing at all [...] the flexibility of audi dictated that the hearing could take many forms," he replies.

Trengove moves onto Magashule's challenge of Duarte's authority. "He is last person competent to take a decision on his own fate," says Trengove. He soon adds, "The [DSG] can exercise that power in the stead of the [SG] on two grounds."

Duarte, says Trengove, has the power to implement the instruction authorised by the NWC and the NEC in this matter. Minutes later, Weiner reflects Mpofu's point on Duarte's support for the decision, which was stated outright ex post facto.

Trengove says on the "suspension of the president" Ramaphosa, "We've had an extraordinary submission this morning." Molahlali interrupts to ask about the DSG having a discussion with the SG on signing documents on conferences to be held.

"Even if she actually thought he was still in office, then she made a mistake of law [...] it doesn't in any way detract from the validity of the suspension," begins Trengove. Duarte's "opinion of the legal consequences of the suspension is irrelevant" to its validity.

[EARLIER] "Mr Magashule comes to court to defend his suspension of the president which was avowedly a suspension under Rule 25.70 [...] he now claims Rule 25.70 is a nullity [...] the president was not afforded any hearing whatsoever," says Trengove.

It is "fanciful" to suggest Ramaphosa was afforded a hearing before the IC on the question of his suspension, says Trengove. "In the face of all of these contradictions with his own case, he [Magashule] persists in contending that the president's suspension was valid," he says.

Trengove refers the full bench to the letter of suspension Magashule issued to Ramaphosa. "I will submit to you that this is a thoroughly dishonest but also thoroughly legally flawed letter," he says.

[EARLIER] What purports to be a suspension under Rule 25.70, asserts Trengove, "distorts the facts" in attempt to bring it within the rule and did so on "spurious grounds". He says the rule in its opening sentence makes it plain it is only applied to people criminally indicted.

Magashule "did his best to create a semblance of compliance" with the requirement on a criminal indictment in Rule 25.70, says Trengove. Reading from Magashule's letter, he says, "that is a spurious attempt [...] a dishonest attempt" to bring Ramaphosa's conduct under Rule 25.70.

Trengove highlights not only does the rule require the person be criminally indicted, but its application depends on authorisation from the NEC. Neither could have been satisfied in Ramaphosa's instance when Magashule penned his letter. "It's dishonest," asserts Trengove.

Please take note of the following. Enkosi.

https://twitter.com/ermbates/status/1408343535967932419?s=20

Trengove: The president makes it clear that those allegations are false. Nobody has ever suggested that there was any criminality in CR17. A full bench of the high court has held that here was no evidence of any misconduct at all on the part of CR17 or the president.

"He knows there has been no indictment and he knows that there has been now NWC authority [...] so, it's a dishonest attempt to suspend the president on spurious grounds," says Trengove. "He [Magashule] then very piously but falsely pretends that he was merely doing his duty."

[EARLIER] Trengove tells the three judges, "Just listen to this." He then quotes Magashule saying he felt "duty bound" to implement the "instructions" of the NWC, he did so reluctantly and "only out of a sense of duty" to the ANC, and that's why he wrote the letter to Ramaphosa.

Trengove says Ramaphosa infers "this is an obviously dishonest and vindictive attempt to retaliate" by Magashule and, while Magashule's team claim it could not be a retaliation due to the shared date of both letters, Magashule knew from the 3 May meeting he was facing sanction.

[HAPPENING NOW] Advocate Dali Mpofu SC for Magashule begins his response, following the lunch adjournment. You can follow the proceedings in real time below.

[EARLIER] On the attachments which Magashule argued were included by Ramaphosa to "annoy" him and served no purpose in helping the court, Trengove argues they are relevant.

Before lunch, Trengove pointed out that the step-aside rule was "widely applied" and certain of Ramaphosa's attachments speak to that. "There's much evidence and a number of documents placed before the court to demonstrate the step-aside rule was widely applied," says Trengove.

After several other submissions, Trengove concluded. The court adjourned for an hour lunch break. Thereafter, Mpofu began his retaliation. Magashule's counsel continues to make representations in the virtual sitting of the South Gauteng High Court.

[EARLIER] On the issue of the judgment, says Mpofu, "to attach a judgment to an affidavit - a full judgment, a long, long one - such as in this Bosasa case [...] you don't do that. More so, when that judgment is irrelevant in its own right."

Mpofu tells the bench the judgment is in-operational and suspended because the appeal process is underway. "How can that be allowed and not struck out?" he asks. "And then he puts the report of the Public Protector. Completely irrelevant," adds Mpofu.

In reply to the assertion (or, argument) that Ramaphosa is entitled to refer to his suspension therefore he can attach these "hundreds and hundreds of pages" Mpofu says there was no need for duplication with Duarte's averments, a confirmatory affidavit would have sufficed.

"There is a case for the court to intervene," asserts Mpofu. He repeats a point that all litigants who appear before the court must be treated the same, if this is not the case the courts will be made a joke.

[NOTE] Proceedings are currently on a break due to technical hassled. Molahleli seemed to drop off the virtual sitting and efforts are being made to add him once more.

Mpofu resumes. He is addressing what is before the South Gauteng High Court. "Our starting point is that the Ramaphosa suspension is valid and effective until lawfully nullified," he begins.

On the suspension of Ramaphosa, argues Mpofu, it must be lawfully set aside. "So, the point that we are making here has been missed completely," he says. Ramaphosa should have, like Magashule, taken steps and gone to court to have the suspension declared unlawful.

Mpofu says, "Even when invited, they still didn't do a counter-application to say, 'Declare it, declare the suspension invalid.' So, that letter is valid. That suspension is valid. The man is suspended as we speak [...] he must go to court and set that suspension aside."

Magashule and his legal team had to respond to what was raised in the answering affidavit, notes Mpofu. "There is no contradiction," he insists. Mpofu says that Magashule did not rely on Rule 25.70 alone to suspend Ramaphosa.

"The letter speaks for itself," says Mpofu in reply to Trengove's point on "contradiction" Mpofu says is "manufactured" when it comes to Magashule defending his letter suspending Ramaphosa, while challenging the suspension letter issued to him.

Mpofu says the suspension letter to Ramaphosa was written on 3 May, it is not denied, it is common cause, as is Magashule receiving his suspension letter on 5 May. So, argues Mpofu, he was fully within his rights to suspend Ramaphosa.

Taking issue with a depiction of Magashule's letter to Ramaphosa as an act of retaliation, Mpofu says it's "debunked by the pure fabrication made by Ms Duarte" about Magashule's suspension letter, drafted 3 May. "She says [...] she does not remember when she signed it. Imagine!"

On two different versions of a letter (or, two letters) from Duarte to Magashule, Mpofu highlights various distinctions - including the greeting and title included - he says could easily be identified by a child as in the spot the difference game.

"If anybody needs to apologise it is Ms Duarte and Mr Ramaphosa for this letter," insists Mpofu. He raises the request for an apology from Magashule for the suspension letter. Mpofu says, "It is very clear what was being done here was to bulldoze Mr Magashule..."

Ok, folks. It's after 15:00, I have been live tweeting proceedings since around 09:00 and I have other responsibilities. You can continue to monitor live via the stream below.