Zuma’s unchecked expulsion power faces legal test

MK Party secretary-general Sibonelo Nomvalo has told the Cape Town High Court that party president Jacob Zuma has sweeping powers to expel members by presidential decree without a disciplinary hearing.

Nomvalo’s answering affidavit challenges Pumlani Kubukeli and Khanyisile Litchfield-Tshabalala’s bid to overturn their expulsion.

He argues that the applicants are “attacking the wrong target” because they challenge the termination decision but not the constitutional provision which gives Zuma power to issue presidential decrees on party affairs.

Kubukeli and Litchfield-Tshabalala have taken Zuma, the MK Party, Nomvalo and National Assembly Speaker Thoko Didiza to court, challenging their expulsion from the party and Parliament.

Nomvalo argues that section 7(2)(h) gives Zuma authority over “any matter pertaining to the operation, administration and policy direction of the party”.

He says that extends to membership admission, termination and deployment to legislatures.

“The decree mechanism is a constitutionally valid regime of termination. No hearing was a precondition to its exercise.”

He lists several termination routes: summary cancellation, disciplinary expulsion, automatic termination, presidential intervention and resignation.

Kubukeli and Litchfield-Tshabalala say their membership could not be terminated without disciplinary procedures.

Nomvalo disputes that, saying the pair were not expelled through disciplinary machinery but through Zuma’s presidential decree power.

He says the applicants failed to challenge the source of the president’s alleged authority because they have not asked the court to declare section 7(2)(h) invalid, unconstitutional or unenforceable. Instead, they attack only the decision taken under it.

The affidavit says letters sent to Kubukeli and Litchfield-Tshabalala on August 27 constituted formal communication of the presidential decision.

Nomvalo says that after receiving the letters, the pair did not demand reasons, seek reconsideration or approach a party structure before going to court.

He says Litchfield-Tshabalala appeared on national television after her expulsion, discussed the dispute and referred to party members as “minions”.

He accuses her of disclosing sensitive engagements and confidential meetings involving Zuma, presenting this as evidence of a breakdown in trust.

The affidavit also targets the strategic presidential team (SPT), which features in the applicants’ version.

Nomvalo says it is not recognised by the MK Party constitution and that the party does not associate itself with the body.

“If the SPT was created through a presidential decree, the applicants effectively accepted the very presidential power they are now challenging. If it was not created by decree, then they were operating an unauthorised structure in the party’s name,” Nomvalo says.

He rejects any suggestion that Kubukeli and Litchfield-Tshabalala should receive special treatment for their political histories.

“Their struggle credentials do not place them outside the reach of the party constitution. The rules apply to everyone.”

Nomvalo asks the court to strike the urgent application from the roll or dismiss it with costs, saying the applicants have not established urgency, failed to exhaust internal remedies and wrongly relied on the Promotion of Administrative Justice Act.

In their replying affidavit on Wednesday, Kubukeli says he was authorised by Litchfield-Tshabalala to respond on her behalf.

He challenges Nomvalo’s authority to act for Zuma and the MK Party, saying the papers served on their attorneys contained no resolution authorising him.

“We deny that the president has the power to expel members by decree without following the disciplinary procedures specifically provided for in the MKP Constitution’s Code to expel members and … without due process,” Kubukeli said.