Expelled uMkhonto weSizwe Party (MKP) members of Parliament, Khanyisile Litchfield-Tshabalala and Pumlani Kubukeli are waiting the judgment in their Western Cape High Court case they brought challenging their expulsions from the party.
The two former MPs were expelled last month from the party. They argued that party president Jacob Zuma used section 7(2)(h) of the party constitution, which empowers him to take binding decisions including dismissing members without a disciplinary hearing. The matter sat on September 17 and judgment was reserved.
On behalf of the MKP, party secretary-general Sibonelo Nomvalo, stated in an affidavit that Litchfield-Tshabalala and Kubukeli were not members of the party when they were expelled; therefore, they do not have the right to challenge their expulsion.
Speaking to The National after the case was heard, Kubukeli said the argument that he and Litchfield-Tshabalala were not members was ridiculous as they had represented the party in senior positions such as on the Special Presidential Team (SPT) and in Parliament.
However, he said one of their main arguments in court was that Zuma did not depose to any affidavit as a second respondent to state his case. Kubukeli said that Nomvalo, who was cited in the case, had instead said that he was representing the interests of the party, Zuma and Brian Molefe.
In his affidavit, Nomvalo challenged the jurisdiction of the Western Cape High Court, arguing that the decision to expel was taken in Durban where the party’s head office is and he did not understand why the matter can be heard by a court in another province.
He also questioned the membership of the expelled members, challenging them to prove that they were members.
The MKP also argued that PAJA (Promotion of Administrative Justice Act) does not apply to the party, arguing that the termination of membership of a voluntary political association is a private, contractual act and not an administrative action.
The expulsions came after Kubukeli said he had opened a criminal case relating to alleged financial irregularities involving party funds. The party said no allegations were made which would equate the party to a public body. In terms of PAJA, the audi alteram partem (affected individuals must be given an opportunity to be heard) principle must be observed.
The case could have wider implications within the party, as Zuma used the same decree to expel his daughter Duduzile Zuma-Sambudla and former spokesperson Nhlamulo Ndhlela. Their matter is expected to be heard in the South Gauteng High Court at the beginning of October. In their media briefing, the pair said that there were no disciplinary processes prior to their expulsions.
In his founding affidavit, Kubukeli argued that the party’s constitution provides for disciplinary processes to be handled by structures including the National Disciplinary Committee and the National Disciplinary Committee of Appeals.
He said the constitution clearly stipulates that members may be subjected to disciplinary processes only through these structures.
Kubukeli also argued that Zuma is not a member of the appeals committee.
Zuma established the SPT after receiving a confidential internal report from a senior Member of Parliament, who warned him of an alleged plot by senior party members to capture the party politically and financially.
The confidential report, which The National has seen, detailed the alleged mismanagement of party funds in a way that could weaken the party’s election machinery.
It is understood that the report led to a forensic investigation. The forensic investigation report, which The National has also seen, alleged that irregularities involving the party’s bank accounts warranted further investigation, including possible referral to the police.
Acting on what he said were recommendations arising from Zuma’s mandate, Kubukeli opened a fraud case with the South African Police Service (SAPS) in Midrand on July 30.
In August he was expelled along with Litchfield-Tshabalala.
willem.phungula@nationalmg.co.za