READ – Full ruling by the National Disciplinary Committee of Appeal

2012-02-29 09:51

Public announcement of the National Disciplinary Committee Of Appeal (Ndca) regarding the appeal hearings of Comrades Julius Malema, Ronald Lamola, Pule Mabe, Sindiso Magaqa, Kenetswe Mosenogi and Floyd Shivambu.

INTRODUCTION
The announcement is being made pursuant of the ANC constitution that requires that a public announcement of the outcome of the disciplinary proceeding be made. The detailed finding is in a separate document entitled “NDCA Finding” The purpose of this media conference is to announce the outcome of the appeal process involving comrades Julius Malema, Ronald Lamola, Pule Mabe, Sindiso Magaqa, Kenetswe Mosenogi and Floyd Shivambu.

The NDCA wishes to record at the outset that the ANC is a voluntary political organisation and the oldest liberation movement in  Africa. The relationship between the ANC and its members has helped to shape the character of the ANC to ensure,  inter alia, that the ANC shall, in its composition and functioning, be democratic, non-racial, non-sexist and against any  form of racial, tribalistic or ethnic exclusivism or chauvinism and prejudices within the context of respecting the linguistic, cultural and religious diversity of its members.

The NDCA believes that one should also not lose sight of the fact that discipline is one of the pillars that has helped sustain the ANC  over the past 100 years and will be fundamental in determining the future of the ANC and South Africa. In this regard it is not only in the interests of ANC  members that have to be safeguarded, but the entire South African nation, our neighbours who have supported the ANC during the liberation struggle and the international community who have placed and continue to place their trust in the ANC.

The NDCA is firmly of the view that it is against this background that the ANC manages the relationship with its members and discipline within the organisation.

Where there is deemed violation of discipline the Constitution sets the rules of disclipnary procedure it states “the objective of disciplinary procedure is to ensure that in all disciplinary proceeding:

     There is a formal procedure.
     There is a just and fair procedure;
     A member is presumed innocent until proven guilty;
     A member has a chance to defend herself or himself; and
     A member has right to appeal.

Comrades Julius Malema, Ronald Lamola, Pule Mabe, Sindiso Magaqa, Kenetswe Mosenogi and Floyd Shivambu appealed to the NDCA against the conviction and sanction imposed by the NDC on 10 November 2011 in  terms of which the comrades were  found guilty for contravening various acts of misconduct in terms of Rule 25.5 of the ANC Constitution and sanctioned.

The appeal hearings of these comrades were convened in the context of an ANC process, the rules of which are governed by the ANC Constitution (as amended and adopted by the 52nd National Conference,  Polokwane, 2007)

The frame of reference for evaluating the grounds for appeal is against the criteria set out in the ANC  Constitution, particularly:-

Rule 2 (Aims and Objectives)         
• to unite all the people of South Africa, Africans in particular, for the complete liberation of the country from all forms of discrimination and national oppression
• to end apartheid in all its forms and transform South Africa as rapidly as possible into a united, non-racial, non-sexist and  democratic country based on the principles of the Freedom Charter and in pursuit of the
national democratic revolution
• Unite all the people of South Africa, Africans in particular, for the complete liberation of the country from all forms of discrimination and national oppression. 3
• End apartheid in all its forms and transform South Africa as rapidly as possible into a united, non-racial, non-sexist and  demo-cratic country based on the principles of the Freedom Charter and in pursuit of the
national democratic revolution.
• Defend the democratic gains of the people and to advance towards a society in which the government is freely chosen by the people according to the principles of universal suffrage on a common voters’
role.

Rule 3 (The Character of the ANC)
• The ANC is a non-racial and non-sexist and democratic liberation movement.
• Its policies are determined by the membership and its leadership is accountable to the membership in terms of the procedures laid down in this Constitution.
• The principles of freedom of speech and free circulation of ideas and information will operate within the ANC.
• The ANC will support the emancipation of women
• The principles of freedom of speech and free circulation of ideas and information will operate within te ANC

Rule 4 (Membership)
• Rule 4.15 which provides that on being accepted in  the ANC, a new member, shall, in a language he or she knows well, make the following solemn declaration to the body or person designated to administer
such oaths:

“I, ........ , solemnly declare that I will abide by the aims and objectives of the African National Congress as set out in the Constitution, the Freedom Charter and other duly adopted policy positions, that I am joining the organisation voluntarily and without motives of material advantage or personal gain, that I agree to respect the Constitution and the structures and to work as a loyal member of the organisation,  that I will place my energies and skills at the disposal of the organisation and carry out tasks given to me, that I will works towards making the ANC an even more effective instrument of liberation in the hands of  the people, and that I will defend the unity and integrity of the organisation and its principles, and combat any tendency towards  disruption and factionalism”.
   
Rule 5 (the Rights and Duties of Members)
• Take a full and active part in the discussion, formulation and implemention of the policy of the ANC 4
• Take all steps to understand and carry out the aims, policy and programme of the ANC
• Observe discipline, behave honestly and carry out loyally decisions of the majority and decisions of higher bodies
• Combat propaganda detrimental to the interests of the ANC and defend the policy, aims and programme of the ANC
• Explain the aims, policy and programme of the ANC to the people.
• Deepen his or her understanding of the social, cultural, political and economic problems of the country.

Appellants Notices of Appeal
Appellant’s Notices of Appeal were submitted on 24  November 2011. The Appellants filed their Heads of Argument on 16 January 2012 and the Respondent filed its Heads of Argument on 20 January 2012.

Initially the hearing was set down for 4 January 2012 and, the parties had to file their Heads of Argument 7 days before the hearing.  At the request of the Appellants’ representatives, an extension of time was granted and the appeal was heard on 23 and 24 January 2012.

A total of 69 arguments were raised by the Appellants in the four appeal hearings. These arguments
comprised of cross cutting, legal and procedural issues which involved all the Appellants and specific arguments on the merits in the individual cases. In determining the appeals, the NDCA had regard to the
Record, Notices of Appeal, NDC Findings and Annexures and Heads of Argument and has considered the oral submissions of the parties at the hearing.

The parties agreed at the hearing that the findings in the four appeals could be    
consolidated.

SUMMARY OF APPELLANTS’ CROSS CUTTING, LEGAL AND PROCEDURAL
ARGUMENTS

1. Appellants’ argument that the NDC members should have recused themselves

1. The Appellants argued that three members of

the NDC (Derek Hanekom, Susan Shabangu and Collins Chabane) should have recused themselves.

Comrade Derek Hanekom because
- He conducted an interview with the media before the commencement of the proceedings.
- He changed the venue of the proceedings unilaterally .
- His inflexible position on the policy of expropriation of land without compensation

Comrade Susan Shabangu because
- Of her statement on nationalisation

Comrade Collins Chabane because
- His relationship with the Appellant was  bad
- His employment in the Presidency made him biased.

The NDC, in its ruling, stated, inter alia:-
The onus of establishing a case for recusal is upon the applicant and the test is objective.
    
The ANC is a vibrant political movement, which encourages constructive debate and it is not unexpected for ANC members to  hold different views. However, this does not automatically translate into bias or a perception of bias. Such a conclusion is unreasonable.

In the view of the NDCA, the Appellants’ argument that individual members such as Derek Hanekom and Susan Shabangu could exert pressure to bear on the NEC and the ANC itself to decide the issues of nationalisation and expropriation of land in a particular way and that the exclusion of  the Appellant would facilitate this outcome is both naive and absurd.

With regard to Cde Collins Chabane – it rediculous  to argue that his deployment in the President’s office in government could made  him biased. What the Appellants are in effect arguing is that the NDCA should deduce that here is some form of conspiracy.

In all the circumstances, the NDCA is satisfied that the NDC applied its mind properly to the Appellants’ application for the recusal of three of its members and finds no basis or reason to vary that decision.

2. Appellants argued that NDC members who missed the hearing participated in the adjudication of the matter
 
The Appellants argued that the NDC erred in allowing members of the panel who had missed crucial hearings to participate in the final adjudication of the facts of the matter, alternatively in the adjudication of the substantive matter without having heard the benefit of the evidence and without any qualification. Their participation rendered the process unfair and vitiated the entire proceedings.

The NDCA examined the attendance register which was part of the Record and satisfied itself that the hearings were procedurally fair and were conducted in accordance with the provisions of the ANC Constitution and that only those members who were present throughout the respective  proceedings participated
in the decision making relating to that particular disciplinary hearing.

Consequently the Appellants argument is dismssed.

3. Appellants argued that the NDC was biased
31. The Appellants argued that the NDC, particularly the presiding officer, was biased in that:-
• The behaviour of the presiding officer, particularly in announcing the charges to the press, showed that he had an interest and was biased;
• The NDC was in contact with the SG to discuss the issuing of statements, alternatively the NDC issued statements without reference to the SG;
• Comrade Jackson Mthembu facilitated the press conference is proof of the collusion between the NDC and the complainant;
• The presiding officer was in a rush and impatient; and
• The NDC allowed the SG to take decisions about the  change of vanue to suit his political goals.

The Appellants’ argument that members of the NDC should, during the performance of their duties, have no contact with other members of the ANC is absurd. The ANC is a vibrant voluntary organisation whose members are required to undertake certain tasks on behalf of the organisation and the ANC, in making appointments, has full confidence in the integrity of its appointees.

In the view of the NDCA, the Appellant’s argument that the NDC was in contact with the SG to discuss statements is without foundation. As stated, the NDC relies on the ANC for logistical support and the suggestion that the SG would have had to sanction statements of the NDC is baseless and unsupported. We have found no evidence that supports the view that the presiding officer was in a hurry.

Consequently the Appellants argument is dismissed.

Quashing of Charges
The Appellant stated that the NDC committed a gross irregularity in dismissing their application for the quashing of the charges.

In dismissing the application to quash the charges, the NDC set out with sufficiently particularity the test to be applied in an application to quash charges and provided full reasons for its decision. The NDCA sees no reason to vary the NDC’s decision.

Consequently, the Appellant’s argument is dismissed.

4. Appellants argued that the National Officials was not a body and did not have the power to iinstitute disciplinary proceedings
The Appellants sharply raised the issue of the  locus standi of the National Officials as well as the jurisdiction of the NDC arguing that the National Officials was not a body that was consitutionally empowered to preffer charges against the Appellants.

The NDCA has examined this argument carefully and are of the view that the Appellants argument is based on a misreading of Rule 25.3 of the ANC Constitution. It is the considered view of the NDCA that Rule 25.3 empowers the National Officials to invoke, institute and refer disciplinary proceedings after it is satisfied that disciplinary proceedings are warranted against a member.

Rule 25 read together with the Appendix of the Constitution empowers the Nationals Officials to institute disciplinary proceedings.

The Appellants argument that the National Officials is not a body that can institute charges is dismissed.

5. Appellants argued that the charges were instituted to settle political scores
The Appellants argued that the charges instituted against them were aimed at settling political scores. The grounds advanced by  the Appellants are that the President and the Secretary General of the ANC have political scores to settle.  The Appellants state that it is well established that the ANC Youth League
adopted a resolution effectively to remove the SG at the next conference. The League’s congress also refused to adopt a resolution supporting the retention of the President.

On an objective analysis and in light of the above  reasoning, the NDCA is satisfied, that the NDC discharged its  duty under  Rule 25.2 of the ANC Constitution and finds no reason to depart from the approach adopted by the NDC in distinguishing between legitimate charges and charges that could be politically driven. Consequently, the Appellant has failed to convince the NDCA that the charges were instituted to settle political scores.

Consequently the Appellants argument that the charges were instituted to settle political scores is dismissed.

6.  Appellants argued that the NDC Ruling offends against the autonomy of the ANC

Youth League
The Appellants argued that the ANC Youth League is a separate legal entity from the ANC; that any disciplinary action against the Appellant should have been conducted by the Youth League and that since the definition of “autonomy” was vague in the ANC Constitution, the NEC and not the  NDC should be the final arbiter of the meaning of autonomy.

Although the Youth League has an organisational and administrative life of its own, its own constitution and the power to hold its own conferences and to take decisions, the Appellants correctly conceded that in the event of conflict between the constitutions of the Youth League and the ANC,  the ANC Constitution will
prevail.

In the view of the NDCA, this will always be so because the Youth League is an integral part of the ANC and operates within the framework of the ANC Constitution and polici

es of the ANC.
 
If the intention of the ANC was to define its relationship with the Youth League to encompass the political and historical background of the autonomy of the Youth League, then, in the view of the NDCA, the definition of “autonomous” in the ANC Constitution would have been framed differently. 

However, the present definition of “autonomous” in  the ANC Constitution places an onus on the Youth League to operate within the framework of the Constitution and policies of the ANC. Consequently, the Appellant’s argument that the Youth League could make and publicly communicate its p olicy, even if it transgressed ANC policy, is absurd.

For the reasons set out by the NDC in its Finding and the above reasons of the NDCA, the Appellant’s argument that the NDC ruling  offends against the autonomy of the ANC Youth League must fail.
 
7. Appellants argued that the NDC Ruling violates the principle of organisational discipline with reference to Rule 5.2(g) of the ANC
Constitution
The Appellants argued that the principles of organisational discipline and democracy which are contained in Rule 5.2(g) of the ANC Constitution made it obligatory for the Appellants to issue statements in the course and scope of his elected position and because it reflected the majority view of the NEC of the ANC Youth League.
 
In the view of the NDCA, Rule 5.2 of the ANC Constitution sets out the normal duties which ANC members would have to perform to achieve the objectives of the organisation. These duties are not only positive but also negative [see Rule 5.2 (i)].

In the view of the NDCA, the Appellant’s argument would be a draconian interpretation and certainly not one contemplated in Rule 5.2 of the ANC Constitution or expected of ANC members because it would be equating a normal duty of an ANC member to a point of compulsion or automatism.

In the view of the NDCA, the duty on ANC members implied by the principle of organisational discipline, as set out in Rule 5.2(g), is the duty to carry out lawful and reasonable instructions of the ANC in the furtherance of the objectives of the ANC. This is the underpinning of Rule 5(2) of the ANC Constitution.

Consequently the Appellants arguments that the NDC Ruling violates the principle of organisational discipline with reference to Rule 5.2(g) of the ANC Constitution must fail.

NDCA FINDINGS IN THE INDIVIDUAL APPEALS
1. APPEAL BY MALEMA AND 4 OTHERS on the so-called barging charge
The Appellants were charged with contravening Rule  25.5 (q) in that they deliberately disrupted a meeting of the National Officials thus interferring with the orderly functioning of the organisation and Rule 25 (5) (o) in that they prejudiced the integrity or repute of the organisation, its personnel or its operational capacity by impedeing the activities of the organisation, creating divisions within its ranks or membership.

The Appellants have appealed to the NDCA against the conviction and sanction of the NDC handed down on 10 November 2011 in which the Appellants were found guilty of contravening Rules 25.5(q) and 25.5(o) of the ANC Constitution.

The NDCA has given careful consideration of the events as related by all parties and has concluded that the actions of the Appellants could not be described as deliberate disruption or barging as described by the Respondent.

Accordingly, the appeal succeeds. The Appellants are found not guilty and the conviction and sanction is set aside.


APPEAL OF JULIUS MALEMA
Charge 1
The Appellant was charged with contravening Rule 25.5 (i) of the ANC Constitution by behaving in such a way as to provoke serious divisions or a breakdown of unity in the organisation in that he he addressed a press
conference on 31 July 2011 at the conclusion of an  ANC Youth League NEC meeting where he said amongst other things “in the  past we know President Mbeki used that agenda very well ….”The Affrican agenda is no longer a priority and we think that there is a temptation by the coloniser and the impreialist to want to recolonise Africa in a different but sofiaticated way and President Mbeki stood directly opposed to that type of conduct.”

The NDC found that through his utterances the Appellant sought to portray the ANC government and its leadership under President Zuma in a negative light which therefore had the potential to sow division and disunity. In the ANC. After hearing the argument of both parties, the NDCA is satisfied with the reasoning of the NDC and finds no basis to vary the finding of the NDC.

Charge 2
The Appellant was charged with contravening Rule 25.5 © of the Constitution of the ANC by behaving in such a way as to bring the organisation into disrepute; in that he addressed a press conference on 31 July 2011 by making announcements amongst others:

• That the Botswana leadership of government poses a  serious threat to Africa so we need a progressive government in Botswana;
• We are not going to sit with neighbours that conduct themselves like that. Botswana is in full co-operation with imperialists and the government is undermining the African agenda;
• The ANC Youth League would establish a Botswana Command Team which would work towards uniting all opposition forces in Botswana to oppose the puppet regime of Botswana led by the Botswana Democratic Party.

The NDCA having examined the records, Heads of argument and the findings of the NDC where this issue was canvassed and dealt with exhaustively we are satisfied the NDC’s finding that on Appellant’s own evidence he was not acting in a representative capacity. Consequently the NDCA finds no reason or basis to vary the findings of the NDC.

The Appellant’s appeal is therefore dismissed. And  the Guilty finding of the NDC is confirmed.

APPELLANTS’ ARGUMENT THAT THE NDC REFUSED AND/OR FAILED TO HEAR MITIGATING EVIDENCE
1. The Appellants argued that the NDC committed a gross irregularity in that it failed and/or refused to hear mitigating evidence from the Appellants.

2. The Appellant made the following two submissions in support of his argument:-
        2.1 That the failure of the NDC to hear mitigating evidence before deciding on and passing a sanction constituted a gross irregularity resulting in a fundamental failure of justice and fairness.
        2.2 That the Appellant’s representatives were under the impression that the parties had agreed that the disciplinary hearings would be conducted in two stages – the substantive issues relating to conviction and, if necessary, mitigation prior to the imposition of a sanction.

3. The Respondent argued that neither the ANC Constitution nor the Disciplinary Procedure require the NDC to follow a two-stage process and conduct separate hearings on guilt and thereafter on the question of an appropriate sanction and that if the Appellants had concerns about the legitimacy of the NDC, i twould
make no sense to refer the matte back to the NDC. The NDCA should hear any evidence which the Appellants sought to lead in mitigation.
 
4. The Respondent also argued that if the NDCA was going to refer the matter back to the NDC for purposes of mitigation, it sought a similar opportunity to lead evidence in aggravation of sanction.
 
5. In relation to the Appellant’s second submission, the NDCA is of the view that the informal discussions, albeit inconclusive, may have created an expectation in the minds of the Appellants and their representatives that the proceedings before the NDC would be conducted in two stages – the first dealing with the merits of the cases and the second dealing with the issue of sanction.

6. Based on this expectation, it is possible that the Appellants, in making their defence, did not see the need to advance evidence in mitigation in the course of the proceedings, which they otherwise should have done,

as contemplated in Rule 25.7(a) of the ANC Constitution.

7. Given the  sui generis nature of ANC disciplinary proceedings, the NDCA is of the view that the rules are sufficiently flexible,  in appropriate and exceptional circumstances, to accommodate a two stage inquiry.

8. Although these discussions, even if concluded by the parties, would not have necessarily been binding on the NDC, the NDCA is of the view that a contextual interpretation and approach, necessitated by the fact of the discussion and subsequent expectation, would be in the interest of justice and in keeping with the spirit and objectives of the ANC Constitution.

9. The NDCA has therefore decided that the four disciplinary hearings be referred back to the NDC to hear evidence which the Appellants may wish to present in mitigation of sanction.

10. In the interest of equity and fairness, the NDCA has also decided that the Respondentshould be afforded an opportunity to present evidence in aggravation of sanction, if any, as requested in argument before it.

NDCA RULING
JULIUS MALEMA AND FOUR OTHERS

On the so-called Barging Charge

The Appellants are found not guilty. The conviction and sanction is set aside.

APPEAL OF JULIUS MALEMA
The Appellant’s appeal against his conviction for contravening Rule 25.5(i) of the ANC Constitution is dismissed and the guilty finding by the NDC is confirmed.

The Appellant’s appeal against his conviction for contravening Rule 25.5 (c) of the ANC.
 
Constitution is dismissed and the guilty finding by the NDC is confirmed.

IN RESPECT OF APPELLANTS SINDISO MAGAQA, FLOYD SHIVAMBU AND JULIUS MALEMA 14
1. As prayed for by the Appellants, the matter is referred back to the NDC to determine an    appropriate sanction after hearing  evidence in mitigation and aggravation of sanction that the parties may wish to present.

2. Such hearing shall be concluded by the NDC within 14 (fourteen) days from date hereof and the NDC is directed to provide appropriate guidelines to the parties for the expeditious finalisation of the process.
 
3. In terms of the articulation between the ANC Constitution and Article 11.2 of the ANC Youth League Constitution, any sanction imposed by the NDC resulting in the imposition of a penalty of suspension of membership or expulsion from the ANC shall be applicable to the Appellant’s membership of the ANC Youth
League.

This finding of the NDCA was adopted unanimously by all members.
The above decisions of the NDCA was handed down at  Johannesburg on 4
February 2012

CYRIL RAMAPHOSA
CHAIRMAN OF THE NDCA
BRIDGETTE MABANDLA
JESSIE DUARTE
JEFF RADEBE
TREVOR MANUEL

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