ANC may bar lawyers at disciplinary hearings

2012-04-11 07:51

Johannesburg - Lawyers may soon be banned from ANC disciplinary hearings because they can make it “extraordinarily difficult to bring errant members into line”, while giving the rich an advantage.

This is one of the proposals contained in the ANC’s policy discussion document on organisational renewal, released in Johannesburg on Tuesday. It is one of a series of documents set to be discussed at the party’s policy conference in Midrand in June.

“The use of lawyers in disciplinary cases should be reviewed to ensure that the organisation does not end up in a situation where it is extraordinarily difficult to bring errant members into line.

“Otherwise, those with resources can get away with blatant transgressions and be above the organisation,” the document says.

Malema appeal

This proposal comes on the eve of ANC Youth League leader Julius Malema's appeal against his expulsion from the ANC, to the party’s national disciplinary committee of appeal.

It is set for Thursday before the party’s national disciplinary committee of appeal - the day President Jacob Zuma turns 70.

Malema has employed two senior counsel for his hearing - advocates Dali Mpofu and Patric Mtshaulana - which has been dragging on for almost eight months. This has partly been blamed on the fact that Malema has fought the case on every technical point possible, and also because his lawyers weren’t always available at the same time as disciplinary committee members were.

Last week the ANC’s disciplinary committee betrayed their frustration with the lengthy process by taking the unusual step of suspending Malema with immediate effect for comments he made recently while awaiting his appeal.

According to the party’s constitution, sanctions following a disciplinary hearing can only kick in after the internal appeals process had been exhausted.

The discussion document further says the ANC’s elected leadership should act “firmly and promptly” regardless of who is being disciplined. “The ANC should have the right to institute disciplinary action against any member, including a member if its leagues, who may violate the ANC code of conduct.”

Malema has previously argued that the ANC had no right to discipline him in his capacity as youth leader.

The party is also seeking to eliminate any possible criticism of disciplinary committee members as being partisan because they were ambitious to become leaders. Disciplinary committees “should be composed mainly of the veterans and other cadres who are beyond reproach,” it reads.

The league has repeatedly called for disciplinary committee members to recuse themselves because they were perceived as being biased, while the head of the appeal committee, Cyril Ramaphosa, is being lobbied by groups in at least two provinces to stand for a leadership position in the party.

Political education

ANC Gauteng secretary David Makhura, who briefed journalists about the document flanked by Sports Minister and the ANC’s head of organisation Fikile Mbalula at Luthuli House, also emphasised the need for political education.

“If we don’t educate our members we could end up in permanent disciplinary mode,” he warned.

Malema was ordered to undergo political education following his disciplinary hearing in 2010, but he was hauled over the coals again for the same offence just over a year later.

Answering questions from journalists about the ANC’s position on court action against the party, Makhura said it shouldn’t be used to settle internal party disputes.

Malema said last month at a rally in Limpopo, where Mbalula was also present, that he would take the party to court, but he has since been quiet on this threat.

Mbalula on Tuesday said people who are disciplined should feel there had been fairness “and that they can appear in a disciplinary and that there is recourse”.

He likened it to the justice system where, if you are unhappy about the decision of the Supreme Court of Appeal in Bloemfontein, you go to Braamfontein, where the Constitutional Court is.

He said, however, a disciplinary hearing should only be a last resort. Elders should first try to talk to the member in question.

The organisational renewal document also proposes that there should be a six-month probation period for joining the party, rather than the current eight weeks.

Polokwane conference

The document also denies claims that all the ANC’s problems started in the run-up to its 2007 Polokwane conference.

“It is disingenuous to suggest that factionalism, ill-discipline and in-fighting started in the run-up to and after Polokwane,” the document says.

It also says the party’s problems cannot be blamed on “specific individuals who hold leadership positions”, but these should rather be “overcome through an organisational and mass approach”.

The document also proposes ways for the party to deal with corrupt members, ways for the party to function, even if in opposition, and closer cooperation with Non-Governmental Organisations.

Meanwhile, the ANCYL’s national working committee met on Tuesday, but without Malema, whose latest suspension has barred him from participating in party or league meetings.

“One of the issues discussed was the (ANCYL’s) Limpopo congress - which is supposed to take place this week - and the suspension of Juju for calling Zuma a dictator,” an insider said.

Apparently Malema wants the Limpopo Youth League PEC to be elected this week so that he can have his people serving in the structure, so that he is not out in the cold when he is expulsion is upheld.

After dealing with the issues the NWC will then bring it to the NEC of the Youth League, a source said.

ANCYL spokespeople could not be reached for official comment late on Tuesday.

  • Marion - 2012-04-11 07:59

    Anyone taken before a disciplinary committee should only ever be able to be represented by a fellow employee/member/union representative. This lawyer representation has made a laughing stock of this so-called disciplinary hearing which is in effect a trial.

      Werner - 2012-04-11 08:07

      Agreed Marion and all legal institutions are being made a mockery of. Internal disputes within the anc should be resolved within the anc, the public does not benefit from the outcome. If they cant control insignificant internal disputes like the lack to keep there members in order, who else want to know. The public ear has been exhausted on the minor matter.

      Sheda - 2012-04-11 08:16

      No Marion. I am only a small private business and when I catch an employee stealing they take me to CCMA and after losing the case they take me to labour court. They use their union who send their lawyers. Unions are infinetly richer than me. They force me to spend more with my lawyers than it would cost me to re-employ the thief. Out of principle I pay my lawyers rather than let a thief get his way. That results in me giving the rest of the staff smaller wage increases because I have spent some R50k on lawyers. I am glad the ANC is going through the same problems we businesses have. If they get away with not allowing lawyers then it will only be fair that we small businesses are given the same treatment.

      Nosiphom - 2012-04-11 08:33

      Sheda, the only mistake you are making is that you are comparing an employer-employee relationship to a voluntary organisation. An employer-employee relationship is governed by the LRA yet membership of a voluntary organisation is governed by the constitution of that organisation. Yes I feel your pain as a small business owner that the unions will punish you, but we should not compare the two. Only when the member of an organisation is also an employee (not a deployee) of the organisation should he follow the CCMA, labour court route, otherwise if he does not tow the line, quick and easy get rid of him.

      Marion - 2012-04-11 08:40

      @Sheda - I do understand why small businesses keep attorneys on the payroll but even a union attorney wouldn't be able to argue against the facts though if you follow the labour law regulations to a T and have all your evidence and documentation in order.

      Marion - 2012-04-11 08:58

      @Tshililo - no, the LACK of money is the root of all evil. :-)))

      philip.venter1 - 2012-04-11 09:19

      @Tshililo Money is the root to everything, not just evil. With money you create and destroy, with money you can do anything.

      johan.retief - 2012-04-11 09:24

      @nosiphom Who do you think pays Juju's salary? There is an employer/employee relationship. Even if there is should compare voluntary organisation to business, specifically if it involves politics. Do not kid yourself...there is a lot of money at stake here. The government should realise that this is but a small portion of the problems that business face daily.

      Scouter - 2012-04-11 09:35

      Marion, you still have much to learn about the African way when the chips are down. I admire your philanthropic endeavour but I am afraid that you and many others are destined to join the ranks of the disallusioned liberals of history.

  • Wimpie.Haefele - 2012-04-11 08:03

    Most lawyers will sell their soul to the highest bidder. Can they just conclude this matter and either remove him permanently or reinstate him as this is really getting boring, having to read about it every single day.

      william 2012 - 2012-04-11 09:43

      they dont have any souls..!!!!!

  • Themba - 2012-04-11 08:05

    In other words, this whole Malema issue showed our incompetence has hit an all time low.

      Atholl - 2012-04-11 10:51

      Yes, incompetence and Inconvenience When it's convenient: and you're playing with the wind ::}} .... the 'rules' say that you may be legally protected for ::} .. defence of a rape trial .. defence of corruption x 783 .. defence to scrap scorpions .. defence to fire good (Adv Pikoli) prosecutors When the wind changes, and it's inconvenient then you want to change the rules ... that's Nazi Logic.

  • Paul - 2012-04-11 08:06

    Good! just follow the Labour Relations Act and you will note that legal representatives are not allowed at internal disciplinary hearings and even at the CCMA they are only allowed under limited circumstances!

      Nosiphom - 2012-04-11 08:35

      The LRA is not for deployees without an employment contract. Deployees and members of voluntary organisations are bound by the constitution of the organisation, not the LRA.

      eradingoana - 2012-04-11 09:01

      I agree Paul. Is just that the Cadres are illiterate. Until they get a lesson from someone, Malema 's lawyers will victimize them.

  • Phumi - 2012-04-11 08:10

    Those whith dictatorial and tyrannical tendancies will use their position as well to change the constitution of the ANC to suite their narrow political agenda. As we see with what is happening with our state institutions and judiciary! If you take away the lawyers then you might as well take away the NDC process and the constitution. Me I do not see any difference! I will propose that the floor dicides on the fate of those who have transgressed the party's core values and not power limited to the so called top six!

      Dave - 2012-04-11 09:15

      Interesting approach....I wonder what the rank and file ANC member would vote? Somehow I don't think JZ would be too happy

      manyanyaphiri - 2012-04-11 09:25

      Phumi, you are my kind of reasoner. Agreed, Malema may be one distasteful character to many (just like Jacob Zuma was during the Mbeki era, what with his rape and graft accusations biting his pants all that time). Yet we defended 100%-Zulu Zuma's right to have a fair trial, and Zuma used some 12MillionRand of taxpayer money to clear his name VIA LAWYERS. Why must the rules now change for Pedi-speaking Julius Malema even though it's an "ANC internal matter"? Or rules of legal representation only apply to Ngunis and some toadying former settlers who fear losing a farm to Malema's ideology? Does Zuma want to take the ANC to the pre-Dark Ages he and his tribal cronies were treating comrades in exile camps like Dakawa where for example Comrade Thiza Shabangu, a housefather, was, without the presence of any lawyer, falsely charged and The Prosectuor was one "Comrade" Mary Ngozi whose husband came from the Eastern Cape; The State Witness was one "Comrade" Mary Ngozi whose husband came from the Eastern Cape; and the Judge (who naturally came with a guilty-finding against the Swazi Shabangu) was ALSO THE SELF-SAME "Comrade" Mary Ngozi whose husband came from the Eastern Cape? HAS MR MAKHURA EVER HEARD ABOUT ANC FOUNDER DR PIXLEY KA ISAKA SEME.? AND THE FACT THAT HE HELD A DOCTORATE IN LAW? So why ban a professional practice from an organization founded by the self-same profession, Khurrie?

      Glyn - 2012-04-11 10:38

      @manyanyaphiri - There must be a lot of political dirt out there! Camp Quattro plus, plus... Why not start a regular airing of all these unknown tragedies? Maybe an incognito blog would be the best approach?

      martin.gee.godfrey - 2012-04-11 11:23

      @manyanyaphiri - There is a difference between criminal charges and breaching organizational rules. Malema contravened the ANC's rules. JZ on the other hand faced his charges in a criminal court, hence his need to have a "fair trial" with lawyers representing him (and getting him off on a technicality). when you join any organization, you agree to abide by the rules of said organization. If you join a sports club for example and flout its rules, you get called to a hearing by the club committee and get disciplined according to it's rules. You are not allowed a lawyer to defend you. The ANC is no different, it is a voluntary organization (which also just happens to run the country) and as such they can apply any rules they want. If you don't like the rules, you can leave, simple really...

  • Gerald Jordaan - 2012-04-11 08:13

    Yaaaaaaaawn!! Pleeeeeeeze this is becoming extremely BORING! On again off again!!Reinstate Malema and get done with it!!

      Werner - 2012-04-11 08:15

      Yes go back to bed, Gerald.

      Scouter - 2012-04-11 09:12

      Too much information for young Gerald to grasp

  • Erich - 2012-04-11 08:39

    I think that if you employ a knowledgeable and capable presiding officer, the representation matter should not be too big a problem.

  • Frank - 2012-04-11 08:48

    How were disputes settled in the olden days? No lawyers....definitely no lawyers!!

      Dave - 2012-04-11 08:51

      Get the cane out and 6 of the best, shut JuJu up in no time

      Frank - 2012-04-11 08:56

      Dave, sometimes I feel that a snubnosed .44 with 6 of the best might be easier and less costly.....Juju's got lawyers!!

      Dave - 2012-04-11 09:16

      Its a democracy Frank, klap the lawyers as well

      Frank - 2012-04-11 09:41

      Maybe we should start with them!! ;-))

  • Maronza - 2012-04-11 08:49

    Its simple, during elections vote for the Opposition not because they represent your interests but just to limit the majority of the ruling party that is boasting that it will f*** us up forever. I have always hated this majority edge although happy to have a black government and therefore have always prostituted my vote to Holimisa. I wonder why does not he consolidate his party by taking advantage of this pathetic situation. AT least he keeps them in check.

      Marion - 2012-04-11 09:00

      @Maronza - love the way you say 'prostituted my vote'...

      Glyn - 2012-04-11 10:47

      @Maronza - That is called democracy! No political party can ever follow the wishes of all the voters all the time, or even one voter all the time. Choose the party that is closest to what you want for the future, for your children and grandchildren. Voting for a government is for the next five years, not for the past. The anc has passed its "best by" date, if it even had one! So vote for the best opposition party that you can pick. For you it is Holimisa, for others it will be some other party. For me it is the (+/- 60% Black) DA.

  • eradingoana - 2012-04-11 08:59

    Due to illiteracy, the ANC made that mistake from the beginning. Lawyers are not allowed to represent any employee while the matter is still under internal process. They are only to advise but not appear and appear externally. Hope they will be taken to school to learn the LRA. It shows that they just pass the legislation they don't even understand. I wonder where are we heading to, being led by the people who can't see the road.

  • Ian - 2012-04-11 09:03

    they talk the talk, but do they walk the walk (the sober walk that is, if possible)

  • Scouter - 2012-04-11 09:04

    Lawyers may soon be banned from ANC disciplinary hearings because they can make it “extraordinarily difficult to bring errant members into line” Welcome to the beginning of the end, all you ANC dissidents. This is how ZANU(PF) started getting a grip on their party. No representation and the sudden disappearance of grass root detractors. You get what you vote for.

  • Newsreader - 2012-04-11 09:05

    So basically what we are being told is the zoo keeper cant attend the chimps tea party? Oh well whether he is or is not there, there will still be a big stinking mess to clean up afterwards.

  • mlunghisigeorge.khosa - 2012-04-11 09:05

    that is a gud advantage cos thei cn alwais get awai.less resouces to those corrupt n fake backups da common will also stand a chance.

      Newsreader - 2012-04-11 09:48


  • raath - 2012-04-11 09:05

    You would think that after decades of existence they would have their act together.

  • glen.e.huysamer - 2012-04-11 09:13

    What happens when the member is a lawyer?

  • johan.retief - 2012-04-11 09:16 with your own labour law! Get an idea what we deal with on a daily basis. :)

  • Jeffrey - 2012-04-11 09:19

    I haven't read down all the comments so maybe someone's already said this... "“It is disingenuous to suggest that factionalism, ill-discipline and in-fighting started in the run-up to and after Polokwane,” the document says." So, what are you saying? That there isn't any, or that the in-fighting & factionalism has always been there?

  • Scouter - 2012-04-11 09:20

    "This lawyer representation has made a laughing stock of this so-called disciplinary hearing which is in effect a trial" Well, if such matters have become a 'trial' as you suggest, then representation is thoroughly appropriate Marion.

  • Crracker - 2012-04-11 09:31

    Lawyers appear for trade unions and employers organizations as a matter of course under the guise that they are employees or officials of the organisations. And then there are also the legally unqualified litigators who have become very experienced and wily with experience over the years. The occasional and inexperienced employer/ee party is at a clear disadvantage against them. To deprive them of legal representation is unfair. It is untrue that lawyers are an obstacle to the fair outcome of the proceedings. They are NOT. Not at the CCMA or in any other proceedings. Abilities are not evenly spread. True also not among lawyers. But to allow the process to degenerate to the lowest possible common denominator will definitely result in even more unfairness. Everything said and done, where it comes to political parties people must be very careful of one-sided processes. Rather join and support another party when those red lights start flashing. One must rather ask what exactly it is that impedes effective processes and outcomes. Or is it that the presiding officers in those hearings feel uncomfortable with lawyers around?

      Scouter - 2012-04-11 10:03

      Spot on Crracker

  • Glyn - 2012-04-11 10:25

    If the anc does that is it ok for companies to do the same? Is this good news or what?

  • Kmalebye - 2012-04-11 10:57

    malema is winning atrial in the anc and surely the anc don't want to go to court cause they see that they are going to lose when it gtes there cause in an south african court the are no factions who are lobbied for leadership.

  • felican - 2012-04-11 11:31

    Ugh... wish they would really just get on with all and be done now... All this procrastination is indirectly tax payers money anyway... As far as I am concerned there is no longer a proper Justice System in the country..whether it be for Unions - Private Business - The Middle Man - or the Individual.... Because money does talk and anyway this 'Hearing' which in my estimation is actually 'A Trial' is now hellbent on becoming a mockery of all good against evil.

  • Jacqui - 2012-04-11 11:58

    Everything regarding the ANC is extraordinarily difficult. It isn't going to get any better either.

  • Andrew - 2012-04-11 12:17

    Will the government (ANC) now start to understand the process they brought into being with their labour laws in dismissing errant employees. Some of their own medicine.

  • meshvic - 2012-04-11 13:27

    if respondents who are represented by lawyers are at an advantage, it means the process is inherently unfair

  • holger.behrens.88 - 2012-04-11 14:46

    Sometimes I wonder if these politicians do anything but play politics all day long - surely they have a job to do!!!

  • SarcasticAgnostic - 2012-04-11 15:04

    The ANC is making sense. Third sign of the apocalypse. It's official people, we're boned.

      SarcasticAgnostic - 2012-04-11 19:21

      BTW, the first sign was America still standing after having a retard for a president. The second sign was zaatheist not commenting on an article about the pope. The third, ANC making sense. The forth, A white man becoming president of SA. And when Malema, wearing a two-toned shirt, rugby shorts and veldskoene, finishes the first days work of his life, the sky starts cracking.

  • sandy.langenstrass - 2012-04-12 07:41

    Good idea to rid discipline hearings of these big shot lawyers....who help to, with their malignant form speech, turn their VERY GUILTY client into a not guilty..preventing the hearing of true justice....a win for the sly lawyer....a HUGE loose for SOCIETY.

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