BLOEMFONTEIN – A misstep by ANC Deputy President Paul Mashatile during his tenure as acting secretary-general is refusing to fade into the background, as his sworn statements regarding party matters in the North West province have resurfaced to ignite a fresh legal challenge.
Just as the political dust seemed to be settling, Mashatile's past declarations are now the subject of scrutiny, threatening to undermine the legitimacy of the North West provincial conference that elected Nono Maloyi and his executive in August 2022.
The saga took a new turn on Friday when it emerged that Sello Molefe, one of the disgruntled ANC members who initially took the party to court to challenge the conference's validity, has formally appealed to the National Prosecuting Authority (NPA) over its decision not to prosecute Mashatile.
Through his legal representatives, Zisiwe Attorneys, Molefe has expressed his profound dissatisfaction with the NPA's handling of his case against Mashatile, alleging that the decision by the North West director of public prosecutions, Rachel Makhari, was fundamentally flawed, irrational, and unlawful.
The legal challenge comes just days before the Supreme Court of Appeal (SCA) in Bloemfontein is scheduled to hear arguments regarding the legality of the North West provincial conference, with Mashatile's controversial statement forming a key part of the evidence under consideration. Five judges of the SCA are expected to preside over the case, which has far-reaching implications for the ANC's internal stability in the province.
The roots of the dispute lie in the August 2022 provincial conference that elected Maloyi. Molefe and his allies have consistently argued that the interim provincial committee (IPC), tasked with leading the province to the conference, lacked the necessary authority to do so. They claim that the national executive committee (NEC) had not renewed the IPC's mandate, rendering its actions invalid.
In response to these challenges, Mashatile, in his capacity as acting secretary-general, submitted an affidavit asserting that the ANC NEC had indeed reappointed the same IPC during its meeting held from 26 to 29 July 2019. He further claimed that the NEC had resolved to dissolve and reappoint members of the IPC at that meeting.
However, this statement has since been exposed as inaccurate, as several members of the IPC had passed away or resigned by the time of the alleged reappointment. This discrepancy has raised serious questions about the veracity of Mashatile's claims and his potential culpability for misleading the court.
Court papers reveal that Sophie Maine, a member of the IPC, died on 18 August 2020 after a short illness. OJ Tselapedi passed away on 6 June 2021, and Maitu Kgaile succumbed to a Covid-related illness on 16 July 2021.
Furthermore, Supra Mahumapelo had resigned from the IPC on 30 September 2019 after being deployed to the National Parliament, and Job Mokgoro, who served as an ex officio member of the IPC by virtue of his appointment as the premier of North West, resigned on 26 August 2021.
The court papers highlight the impossibility of the ANC NEC reappointing deceased individuals or those who had already resigned. "Yet Mashatile alleged in the answering affidavit that the ANC NEC purportedly resolved on 26 – 29 July 2022 to reappoint these deceased ANC members into the IPC notwithstanding the fact that they were late."
The group argued that the terms of office of Supra Mahumapelo and Job Mokgoro ended when they resigned on 30 September 2019 and 26 August 2021, respectively. Mahumapelo and Mokgoro could, therefore, not be reappointed as IPC members by virtue of their resignations.
Molefe and his legal team have also pointed out that the dates cited by Mashatile for the NEC meeting – 26 to 29 July 2022 – conveniently coincide with the dates of the original NEC meeting held in 2019. This has led to accusations that Mashatile simply copied and pasted the minutes and resolution from the 2019 meeting, altering the year to 2022 in an attempt to deceive the court.
"It is clear from the reading of 'ANC11' that Mashatile simply copied the minutes and resolution of 26 to 29 July 2019 and pasted it in the disputed minutes of the purported minutes and resolution of the meeting held on 26 to 29 July 2022. On proper scrutiny and analysis of the two resolutions, it would appear that Mashatile simply amended the year on the resolution from 2019 to 2022 and left the exact dates of the NEC formally to dissolve the then PEC," Molefe stated in court papers.
The court papers also cite Rule 12.2.4 of the ANC Constitution, which stipulates that "The suspension of a PEC shall not exceed a period of three months. The election of a PEC, which has been dissolved, shall be called within nine months from the date of dissolution. The NEC must appoint an interim structure during the period of suspension or dissolution of the PEC to fulfil the functions of the PEC."
Faced with mounting evidence of inaccuracies in his initial statement, Mashatile later submitted a second affidavit, admitting to having made a mistake.
"Our client deposed and filed a supplementary affidavit at the North West High Court on 7 February 2023, where our client brought this alleged fraud by Mashatile to the attention of the North West High Court. Mashatile on 23 February 2023 deposed to a confirmatory affidavit in terms of which he admitted that the ANC NEC meeting of 26 to 29 February 2022 never took place and apologised unreservedly for alleging that the meeting took place during those dates," read the court papers.
However, Molefe argues that Mashatile has failed to provide a satisfactory explanation for how the purported resolution was created or to identify the official responsible for its creation.
They further contend that Mashatile's motive was to mislead the North West High Court into believing that the ANC NEC had complied with Rule 12.2.4 of the ANC Constitution by appointing an interim structure, a false allegation made by Mashatile in order to circumvent prayer 6 of the relief our client sought in terms of the notice of motion.
Molefe claims that Mashatile relied heavily on the fraudulent NEC resolution purportedly taken at a meeting held on 26 to 29 July 2022 in order to persuade the court to find in the ANC's favour.
"Had our client not brought this alleged fraud committed by Mashatile to the attention of the court in the form of a supplementary affidavit, Mashatile would have succeeded in misleading the court and, therefore, prejudicing the applicants," read the court papers.
According to Molefe, the conduct of Mashatile was unlawful because he knew as a matter of fact that the ANC NEC had never held a meeting on 26 to 29 July 2022 and had never taken the purported resolution.
Molefe, through his lawyers, argues that "Mashatile further committed the offence of perjury for the following reasons: Mashatile took an oath to testify truthfully. He willfully made a false statement contrary to that oath by stating that the ANC NEC held a meeting on the 26 to 29 July 2022, during which period he was the SGO of the ANC and knew as a matter of fact that no meeting was ever held on the 26 to 29 July 2022 and no resolution was taken by the ANC NEC; therefore, he knew that his statement was untrue and that the statement related to a material fact."
They accuse Mashatile of making false statements in the course of judicial proceedings at the North West High Court, arguing that "Mashatile acted unlawfully by making the false statement, and he acted intentionally."
Despite these allegations, the North West director of public prosecutions, Makhari, declined to prosecute Mashatile on 21 November 2024, citing no prospects of success.
This decision has been met with strong condemnation from Molefe, who believes that there is overwhelming evidence to support a criminal prosecution. "It is our client's instructions that the decision of the NPA to decline to prosecute Mashatile is flawed, irrational, irregular and unlawful. It is our client's further instructions that there exists overwhelming evidence that Mashatile committed the criminal offence of fraud and perjury. Our client intends to institute legal proceedings against the National Prosecuting Authority to review and set aside its decision to decline to prosecute Mashatile as contemplated in terms of section 3 (1) of Act 40 of 2002," read the legal papers.
Responding to the allegations, Mdu Mbada, chief of staff in the office of Mashatile, stated that Mashatile has already deposed the statements through the ANC and would allow the process to proceed as is. He emphasised that the matter is not an individual one but concerns the party, and that representatives appointed by the ANC will handle the legal proceedings.
As the Supreme Court of Appeal prepares to hear arguments in the case, the spotlight remains firmly fixed on Mashatile and his past actions.
