Advocate Mahlape Sello acted for suspended ANC secretary-general Ace Magashule in a “lawfare” case against President Cyril Ramaphosa in 2021, it has emerged.  

This raises questions about whether she should have stepped down from the Section 89 panel which has said Ramaphosa may have breached the Constitution and may be eligible for a parliamentary impeachment inquiry.  

Sello was appointed to the panel by National Assembly Speaker Nosiviwe Mapisa-Nqakula in September 2022, after UCT professor of law Richard Calland stepped down. Calland faced a perception of bias because some of his writing had been favourable to Ramaphosa. 

Parliamentary spokesperson Moloto Mothapo said the Speaker’s Office conducted all necessary checks on all panel members before their appointment, and was satisfied that there would be no perception of bias or conflict of interest.

Asked by Daily Maverick if she should have declined the appointment or stood down for the same reason as Calland, Sello said: “The panel, having completed its jobs without you having raised this before, is highly inappropriate. I have no comment.” 

Sello was a member of suspended ANC secretary-general Ace Magashule’s legal team when he challenged his suspension in the Johannesburg High Court last year. 

The team – which included Advocate Dali Mpofu SC – sought not only to have Magashule’s suspension reversed, but also to have his own letter of suspension issued against President Cyril Ramaphosa validated, according to an EWN report. Magashule also wanted the ANC’s step-aside Rule 25.7 in its constitution to be declared unconstitutional.

Magashule was suspended on 3 May 2021, after which he unilaterally drafted and dispatched a midnight letter of suspension against Ramaphosa on 5 May 2021.

Read in Daily Maverick: “Magashule’s attempted midnight suspension of Ramaphosa was flawed and dishonest, court hears”

The letter stated that Ramaphosa had been reported to the Serious Offences Directorate and that the matter of sealed documents relating to his CR17 campaign prior to and during the ANC national conference was pending before the courts, according to a News24 report.

In arguments, Sello also raised questions about Ramaphosa’s campaign fundraising for his 2017 bid for the ANC Presidency and the allegations of corruption against him. 

“The first respondent [Ramaphosa] does not deny that this matter has been
referred to the Serious Offences Directorate, involving amounts on the first
respondent’s version of R300-million. He has said before the State Capture
commission that he’s had the number R1-billion bandied about, but at least
he has confirmed R300-million,” she said during court proceedings.

Magashule’s application to have his suspension declared illegal was ultimately dismissed with costs by the Johannesburg High Court in July 2021, according to a Daily Maverick report. His own attempted suspension of the President was further found to be illegal.

Other accomplishments

Sello was also one of the evidence leaders appointed to the Arms Procurement Commission under its chairperson, Judge Willie Seriti. This was confirmed in a press statement issued by Seriti in June 2012. That inquiry is widely regarded as a whitewash, but she has many other distinguished accomplishments under her belt too. She was also deputy chairperson of the Independent Commission on the Remuneration of Office Bearers.  She also served as an advocate for the Zondo Commission of Inquiry into State Capture, which investigated incidents of state capture that took place within South African government departments and state-owned enterprises during the presidency of Jacob Zuma.

Advocates work according to a “cab rank” rule where they generally do not turn down work in order to execute on the principle of fair legal representation. Counsel will often appear for vastly different clients according to briefs.  

Advocates Mahlape Sello, a member of the legal team, Dali Mpofu, MKMVA’s Carl Niehaus and suspended ANC secretary-general Ace Magashule. (Image: Screengrab)

Sello is not like Mpofu who only has a boutique set of clients aligned to a particular political view. She has acted for the Presidency against a director-general, for example. 

But the nature of the Section 89 inquiry is part of a wider political battle in the ANC and Sello has advocated for one side in a case regarded as “lawfare” – defined as the use of law to hinder an opponent.  

The panel’s report is being digested and critiqued. Here is Richard Calland’s take.   

Visit Daily Maverick’s home page for more news, analysis and investigations

A human rights scholar has noted that the panel report left Ramaphosa and future Presidents “vulnerable to ‘impeachment by suspicion’ at the instance of minority parties in the National Assembly and the prospect of weak coalitions will further weaponise impeachment as it has motions of no confidence”.   

A source at Parliament who requested anonymity said the process “is just a mess. I’m not sure how Parliament arrived at this point.” He said the rules developed to guide the Section 89 (impeachment process) risked destabilising the country. He said that the threshold for possible impeachment of a President was lower than that for removing a head of a Chapter 9 institution like the Public Protector or Independent Electoral Commission. The courts had been left out of the process of possibly removing a president when that office is the constitutional embodiment.  

Too much power had been placed in the hands of the Section 89 panel, he said. 

Sello is a well-regarded counsel who has formed part of numerous commissions and is well respected among her peers. She takes no prisoners, is regarded as hard-working and has also served on corporate boards giving her broad experience.  

Her profile reads: “She previously served on the Board of
Murray & Roberts Limited and held the position of chairman from
2013 to 2017. She is a member of the International Court of
Arbitration of the International Chamber of Commerce Council and
a Panellist with the Arbitration Foundation of Southern Africa
and the China-Africa Joint Arbitration Centre. Advocate Sello
is also a former chairman of the Advertising Industry Tribunal of
the Advertising Standards Authority of South Africa. She served on the South African Law Reform Commission, National Business Initiative, the Joint Education Trust.” 

A video posted to the Twitter feed of former ANC NEC member Carl Niehaus appears to show a jocular exchange involving Magashule and his legal team, including Sello, after closing arguments on 25 June 2021.

In the video, Sello appears to grab a colleague and wag a finger at Magashule, saying: “You tell your [client]… you owe me sleep… you owe me lots of sleep.” DM

My old friend and comrade, advocate #DaliMpofu, telling comrade @Magashule_Ace how, when he was still an article clerk he tried to assist me to escape from the Pretoria Maximum Security Prison, when I was a political prisoner.

Solidarity and comradeship over years! ✊🏾 pic.twitter.com/djfnUdMLRi

— Carl Niehaus (@niehaus_carl) June 25, 2021