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President Cyril Ramaphosa.
Brenton Geach, Gallo Images
- Lawyer Dali Mpofu SC has added his legal opinion on the controversial issue of whether ANC members should step aside when implicated in wrongdoing.
- His opinion focuses on the recommendations made by the public protector Busisiwe Mkhwebane that President Cyril Ramaphosa should be investigated for money laundering through his CR17 campaign for the ANC presidency.
- Mpofu’s opinion, which News24 has seen, comes after four other documents emerged that have conflicted in his opinion on the matter.
- He finds the proposed resolution invalid and unenforceable.
A fifth legal opinion on the question of the resignation of ANC members has focused on the findings made by Public Protector Busisiwe Mkhwebane against President Cyril Ramaphosa.
The legal opinion written by lawyer Dali Mpofu SC will be part of a dossier to be considered at the ANC National Executive Committee (NEC) meeting on the controversial issue of whether ANC members should step aside when involved. in irregularities.
Mpofu, whose legal opinion was requested by the ANC’s national working committee on the legality and constitutionality of the revocation resolution, concludes that the proposed resolution would not pass the minimum threshold and the requirements of legality and constitutionality.
“Consequently, the proposed regime is invalid and unenforceable,” he said.
Mpofu’s opinion, which News24 has seen, comes after four other documents emerged that have conflicted in his opinion on the matter.
READ | Ace steps aside or gets pushed: new legal opinion demands ANC to act against him
The ANC has struggled to distinguish the question of standing aside, as leaders within the party have disagreed on what exactly that resolution means and when it can be enforced, or whether it can be enforced at all.
In its November 4 opinion, Mpofu argues that the exclusion regime clearly constitutes a limitation or infringement of the rights of the members enshrined in the Bill of Rights, and adds that such limitation would not be justified in terms of article 36 of the Constitution. .
“Specifically, the ANC or any entity has no right to strip any citizen of his constitutional right to be presumed innocent until a competent court finds him guilty. No rule or policy that purports to do so can pass a constitutional challenge.”
Four other opinions have differed in their interpretation of the legality of the resolution.
Former ANC treasurer general Mathews Phosa, in an Oct. 27 ruling, said that voluntary resignation from a position in an organization like the ANC was “primarily a political and moral issue” and did not fall within the scope of his legal advice. .
An unsigned and undated opinion specifically addressed to General Secretary Ace Magashule, who is out on rand 200,000 bail after being charged with 21 counts of fraud and corruption, says the party’s NWC could order him to step aside, Since you have refused to do so please do so voluntarily, News24 reported.
“If he defies the NWC’s instructions, then the NWC may consider disciplinary action against the SG in terms of Rule 25.3,” the opinion stated.
However, defender Gcina Malindi said that if a decision was made within the limits of the ANC constitution and party resolutions, it would pass the legal and constitutional test.
Mpofu’s argument has also analyzed Ramaphosa’s brush with a constitutional body, saying that relying solely on the National Fiscal Authority (NPA) or the National Director of Public Prosecution (NDPP) appeared to be arbitrary and irrational.
READ | ANC leaders will consider 4 options for members accused of corruption
It adds that given its history, it would be dangerous to subcontract the party’s decisions to the NPA, as a faction with the ability to capture the NPA would have an unfair advantage and could immunize its members from the resolution.
“Ironically, in the context of corruption, the Public Protector’s findings outweigh the NPA’s decision to indict a person. While the Public Protector’s findings and the consequent corrective measures are binding, unless a court of justice annuls them. The decision to impute the NPA is neutralized by the presumption of innocence, which does not apply to other constitutional entities. This is an important consideration that requires serious consideration and can have serious implications if proven in court .
“More significantly and given that the objective of the regime is corruption, it is unclear why, when other independent constitutional structures or bodies dealing with corruption and fraud in the public sector have made or pronounced a prima facie case or a adverse conclusion. Like the Public Protector and / or the Auditor General, the regime cannot be imposed. Again, placing too much trust solely in the NPA or the NDPP seems to be arbitrary and apparently irrational, “he argues.
The Constitutional Court is considering an appeal from Mkhwebane after the Gauteng High Court in Pretoria overturned its corrective action recommending that Ramaphosa be investigated for money laundering through his CR17 campaign for the ANC presidency.
Mpofu argues that, if the Public Protector’s adverse conclusions could also be relied upon, a case could be made for the NEC to suspend the president if he decides not to resign or “voluntarily step aside.” However, it adds that Ramaphosa could challenge its suspension on the basis of its constitutionality and legality.
