President Cyril Ramaphosa's evidence at the Zondo Commission is an indication that he is "guilty as a perpetrator and/or accomplice to corruption", according to suspended ANC secretary-general Ace Magashule.
Magashule's application for leave to appeal the High Court ruling, which upheld his suspension from the ANC, will be heard on Wednesday.
Magashule filed a notice that if leave to appeal is granted, he would wish to introduce further evidence to the Supreme Court of Appeal in his court papers.
This evidence would include the transcript of Ramaphosa's testimony before the Zondo Commission last week and the transcript of Ramaphosa's announcement of his Cabinet reshuffle on 5 August.
According to Magashule, the Zondo Commission transcript indicates that Ramaphosa is "guilty as a perpetrator and/or accomplice to corruption; and he ought properly to be liable to step aside from his official duties in terms of the original and undoctored Nasrec National Conference Resolution".
The transcript from the Cabinet reshuffle, according to Magashule, "indicates the selective and factional application of the step-aside rule, as pleaded in the founding affidavit of the applicant, as evidenced by the promotion and/or retention of ANC members who are facing serious allegations of corruption".
He mentioned Enoch Godongwana, appointed as Minister of Finance; Mondli Gungubele, appointed as Minister in the Presidency; Zizi Kodwa, appointed as Deputy Minister in the Presidency; and Gwede Mantashe, retained as Minister of Minerals and Energy.
Last week, Ramaphosa appeared before the Zondo Commission for the second time. He sought to distance himself from those responsible for state capture, claiming that he knew nothing about some key developments.
Ramaphosa would speak of "lapses", "errors", and "system failures", claiming that Cabinet worked in "silos" and that nobody had "line of sight" of what exactly was going on.
All the time, though, he was wary of stating unequivocally that ANC members in government deliberately allowed state capture to happen.
Ramaphosa, speaking in his capacity as deputy president and president of the country, rather than an ANC office-bearer, said he only became aware of state capture "as they did to the general public through the work of journalists, civil society organisations, and institutions such as the Public Protector and Auditor General".
"As it became increasingly clearer – through the so-called Gupta Leaks and other revelations – that a network of individuals was seemingly colluding with a number of people in government to occupy key positions and capture key institutions, the question that arose was how best one should respond to all this."
Ramaphosa defended his stance not to repeatedly speak out and openly resist state capture, as this would lead to former president Jacob Zuma firing him.
Ramaphosa said he saw five possible courses of action: resign; speak out; acquiesce and abet; keep quiet and remain silent; or remain and resist, hoping that things could be turned around.
"The final option, which was what I chose, was to remain in my position as deputy president – not to resign, not acquiesce and not to be confrontational – but to work with others in the executive to resist abuses and bring about change where we could, and to sustain the work of social and economic transformation.
In May, Magashule was suspended from the ANC on the basis of the step-aside rule after he was criminally charged in connection with a multimillion-rand Free State asbestos eradication tender.
In turn, he suspended Ramaphosa as ANC leader and applied to the Gauteng High Court in Johannesburg to overturn his suspension. This application was unsuccessful as a Full Bench found that his suspension was valid and that the step-aside rule was constitutionally sound.
The court said Magashule participated in all the processes relating to the development, formulation and adoption of the resolutions of the 54th national conference regarding this matter, including the resolutions of the NEC (national executive committee) that resulted in the formulations of the guidelines on the implementation of the step-aside principle.
The court also ruled that Magashule's attempt to, in turn, suspend Ramaphosa in his capacity as the party's president had no merit. Last month, Magashule filed a notice of his intention to appeal a Gauteng High Court judgment that upheld his suspension.
A 14-page application was filed in the Supreme Court of Appeal. Ramaphosa, ANC deputy secretary-general Jessie Duarte and the party were respondents in the matter.
In the appeal, the disgruntled secretary-general argued that the High Court in Johannesburg made multiple errors when it upheld his suspension.
When confronted with evidence that he and the ANC's top six had done nothing when given clear corroboration of corruption and maladministration at the Passenger Rail Agency of SA (Prasa), Ramaphosa became defensive and accused former Prasa board chairperson Popo Molefe of being "disingenuous".