PUBLIC ANNOUNCEMENT OF THE NATIONAL DISCIPLINARY COMMITTEE OF APPEAL (NDCA), Chief Albert Luthuli House, Johannesburg, April 24 2012
RE: APPEAL FINDINGS OF COMRADES FLOYD SHIVAMBU, SINDISO MAGAQA AND JULIUS MALEMA
This announcement is being made pursuant to the ANC Constitution which requires that a public announcement of the outcome of the disciplinary proceeding be made.
The Appellants advanced 42 arguments, all of which were dealt with by the NDCA. These findings are contained in a separate 41 page document entitled "NDCA Finding", which will be released publicly as a separate document.
The Appellants' representative and the Secretary General of the ANC were given copies of the NDCA Finding prior to this public announcement.
This public announcement is an extract of the NDCA Finding and sets out the conclusions of some of the NDCA's preliminary rulings and other arguments advanced by the Appellants and the NDCA ruling on the sanctions.
PRELIMINARY RULINGS AND COMMENTS BY THE NDCA
Withdrawal of Appellant Sindiso Magaqa's appeal
1. The appeal, which was set down for hearing on 12 April 2012, could not be proceeded with because the Appellants' legal representatives were not available and the Appellants elected to instruct another legal representative who needed time to familiar himself with the case.
2. The NDCA postponed the hearing and it was agreed that the parties would file Heads of Argument and the matter would be decided on the written submissions.
3. On 18 April 2012, the last day agreed by the parties by which the Appellants were due to file Heads of Argument, comrade Magaqa's legal representatives sent a letter to the Chairman of the NDCA which stated the following:-
ANC/SINDISO MAGAQA: WITHDRAWAL OF APPEAL
1. We refer to the Notice of Appeal in respect of the Third Appellant Mr Sindiso Magaqa ("the Third Appellant") which was lodged with the NDCA on 14 March 2012.
2. This serves to notify the NDCA that the Third Appellant hereby withdraws his appeal and no longer persists with the Notice of Appeal and the ground stated therein.
3. Find herewith the combined heads of argument on behalf of the remaining appellants, namely, comrade Julius Malema and Floyd Shivambu.
4. We trust that the above is in order and regret any inconvenience that may be caused by the withdrawal.
Representatives of the Appellants
18 April 2012
4. The NDC imposed, as part of its sanction, the condition that cde Magaqa should make a public apology to cde Malusi Gigaba within 15 days after the NDC pronounced its sanction on 29 February 2012.
5. Cde Magaqa's legal representatives did not furnish any evidence to the NDCA that the condition in paragraph 4 above has been complied with.
6. Cde Magaqa's legal representatives have also not provided any evidence to the NDCA that the withdrawal of the appeal was done in agreement with the Respondent.
7. The fact that cde Magaqa mentioned in his Heads of Argument, filed on 18 April 2012, that he would be withdrawing his appeal is of no consequence.
8. The NDCA is of the view that cde Magaqa was obliged to seek and obtain the consent of the Respondent to the withdrawal of the appeal especially in light of the Respondent's argument (in its Heads of Argument filed on 11 April 2012) that the NDC erred on the side of leniency by suspending cde Magaqa's 3 year sanction.
9. Consequently, the NDCA finds that the unilateral withdrawal of the appeal would defeat the achievement of justice and be prejudicial to the Respondent.
10. In the view of the NDCA, the intention of cde Magaqa, in withdrawing the appeal, was to frustrate the Respondent by precluding it from arguing for a possible increase in the sanction.
11. The NDCA is of the view that the withdrawal of the appeal at this late stage, after cde Magaqa and his legal representatives were made aware of the Respondent's opposition to the NDC's sanction, is an abuse of process.
12. In the NDCA's view, justice must be seen to be done and finality in this matter should be reached. The unilateral withdrawal of the appeal would defeat these objectives.
13. In his Notice of Appeal, cde Magaqa argued that the NDCA is entitled to take into account that in the intervening period he has apologised unconditionally to Cde Gigaba.
14. The NDCA dismissed cde Magaqa's argument on the following grounds:-
14.1 Cde Magaqa failed to provide evidence that the condition imposed by the NDC was complied with;
14.2 Cde Magaqa's argument that the NDCA was expected to take into account that an unconditional apology was made to cde Gigaba (details of which were not provided to the NDCA) demonstrates cde Magaqa's disregard and disrespect for ANC disciplinary structures and disciplinary procedures;
14.3 In its letter of withdrawal, cde Magaqa's legal representatives did not make any reference at all to the public apology nor indicate whether the withdrawal of the appeal was done in agreement with the Respondent;
14.4 The Respondent will be prejudiced by the unilateral withdrawal of the appeal; and
14.5 Finality of this matter and justice will not be achieved by cde Magaqa's conduct.
15. Consequently, the NDCA, in its discretion and in the interest of justice, has decided not to allow the withdrawal of cde Magaqa's appeal.
Nature of ANC disciplinary proceedings
Disciplinary proceedings in the ANC are sui generis in nature and are governed by the ANC Constitution and not by the principles of criminal law and procedure.
Disciplinary proceedings in the ANC should satisfy four requirements, which can be stated as follows:-
- Is there a rule? (In this case, the provisions of Rule 25.5 of the ANC Constitution which sets out the disciplinary Code of Conduct)
- Is the rule reasonable?
- Was the charged member aware of the rule?
- Did the charged member contravene the rule?
If these requirements are satisfied by cogent evidence and proved on a balance of probabilities, a charged member will be found guilty of contravening the ANC's Code of Conduct as set out in Rule 25.5 of the ANC Constitution.
Unlike in a criminal trial, the Chief National Presenter, or any presenter in ANC disciplinary proceedings, is not required to investigate the state of mind of the charged member when he or she committed the act of misconduct or whether the charged member was provoked into committing the act of misconduct.
Failure by Appellants to accept that they were Found Guilty
After perusing the record, the NDCA is of the view that the Appellants did not appreciate nor accept the basis upon which they were found guilty.
The NDCA is of the view that the failure by the Appellants and their representatives to accept that the Appellants were found guilty by a legitimate structure of the ANC is at the root of the real issue in this appeal proceeding.
The Appellants' disregard for the rulings of the NDC and NDCA
The NDCA has noted with concern the Appellants' persistent claim that:-
- the disciplinary proceedings were instituted to settle political scores;
- members of the NDC and NDCA were biased; and
- the proceedings were irregularly conducted by the NDC and the NDCA.
The various applications brought by the Appellants in this regard were considered and dealt with by the NDC and the NDCA (in the first appeal) and full reasons were provided for their dismissal.
Notwithstanding compliance with due process and fairness by these ANC structures, the Appellants persist with their claims and have peppered their Heads of Arguments with innuendos which show a complete disregard for the rulings of the NDC and the NDCA.
The Appellants also argued that President Zuma pre-judged the outcome of these proceedings at a meeting in Port Elizabeth and were prepared to show a video recording to support their argument. The innuendo in the argument is that President Zuma controls and influences the NDCA remotely. This innuendo advanced by the Appellants is devoid of truth and undermines the integrity of the members of the NDCA. This is rejected.
APPELLANTS' LEGAL ARGUMENTS
The Appellants argued that the NDC committed a fundamental error of justice in relying upon a non-existent version of Article 11.2 of the ANC Youth League Constitution when the applicable version was submitted to the NDC and duly admitted into evidence
The NDCA finds that the appropriate forum for the Appellants to have dealt with the issue of the ANC Youth League Constitution was in the first appeal because the Appellants themselves raised the issue as a ground of appeal in the first appeal to the NDCA.
This would have enabled the Respondent to test the veracity of the latest version of the ANC Youth League Constitution, in particular whether due notice of the proposed amendment was given to the ANC, whether prior notification of the proposed amendment was given to delegates to the ANC Youth League Conference in June 2011 and whether the amendment was properly effected in terms of the ANC Youth League Constitution at the ANC Youth League Conference. Even if it is assumed that the Appellants had presented argument on the latest version of the ANC Youth League Constitution in the first appeal, then, in the view of the NDCA, the current formulation of Article 11.2 would have been rejected because it would have created a legal impossibility and resulted in an accountability free zone for Youth League members and rendered them immune to discipline by the ANC.
Consequently, the NDCA finds that the mere submission in evidence of the latest version of the ANC Youth League Constitution with the amended Article 11.2 at the NDC mitigation hearing, which was dealing with the issue of sanctions, is of no consequence.
In the absence of cogent evidence that the 2011 version of the ANC Youth League Constitution of 2011 is authentic, the NDCA finds that the document is inadmissible in evidence and directs the ANC to investigate this matter.
The NDCA finds that the NDC was entitled to place reliance on the NDCA's finding that "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 or expulsion from the ANC shall be applicable to the Appellant's membership of the ANC Youth League".
The Appellants argued that the 14 day time limit imposed by the NDCA was unauthorised, unconstitutional and inherently unfair
There is no requirement in the ANC Constitution for the NDCA to canvass any issue with the parties before making its ruling.
The NDCA publicly announced its Finding on the conviction on 4 February 2012 and the NDC mitigation hearing commenced on 13 February 2012. In the context of a domestic disciplinary hearing, the NDCA is of the view that sufficient opportunity was afforded to the Appellants to make the necessary preparations and commence with the mitigation hearing.
The Appellants argued that the NDC erroneously exceeded the obligatory time limit of 6 months imposed by Rule 25.10 of the ANC Constitution
The NDCA took cognisance of the fact that the NDC concluded the disciplinary hearings on 10 November 2011, within the 6 month period prescribed by Rule 25.10 of the ANC Constitution, when it delivered its Findings on the convictions and sanctions in respect of the four disciplinary cases before it. That was a final judgment and concluded the disciplinary proceedings that were commenced on 19 August 2011. Thereafter the NDC was functus officio.
The NDCA dismissed the Appellants' argument on the following grounds:-
- Rule 25.10 is intended to place a positive obligation on the ANC to dispose of disciplinary proceedings expeditiously and can only be invoked by a charged member if he or she proves that an ANC disciplinary committee has been dilatory in the execution of its task;
- The long intervals between sittings of the NDC, primarily due to the non- availability of the Appellants' witnesses and their legal representatives has, in the view of the NDCA, frustrated the achievement and underlying objective of Rule 25.10. After examining the record, the NDCA finds that no fault can be attributed to the NDC for any delays occasioned; and
- In any event the NDC, out of excessive caution, sought and was granted an extension of time as provided for in Rule 25.10 by the NDCA. This was disclosed to the Appellants at the sitting of the NDCA on 12 April 2012. In seeking such extension, the NDC was not obliged to notify the Appellants as the ANC Constitution does not make notice to the parties a requirement.
The Appellants argued that the NDC failed to give them adequate opportunity to be present when the sanction was imposed and imposing the sanction in the absence of the Appellants was an irregularity
In terms of Rule 25.11 of the ANC Constitution the only obligations on a disciplinary committee are to report the outcome of the disciplinary proceeding, in this case, to the Secretary General of the ANC and to publicly announce the decision.
There is no requirement in the ANC Constitution for an ANC disciplinary committee to give any notice to a charged member as to when it would be delivering its Finding or to deliver its Finding in the presence of a charged member.
The Appellants' reliance on Appendix of the ANC Constitution to support its argument is relevant to the time during which disciplinary proceedings are actually conducted because it refers to witnesses and interpreters who are entitled to be present. In the view of the NDCA, this provision is not applicable once the proceedings have been concluded.
If any disciplinary committee of the ANC takes steps to inform the charged member of the date upon which its Finding is to be made or to deliver its Finding in the presence of the charged member, such action would be an act of courtesy on the part of the disciplinary committee concerned and not a requirement in terms of the ANC Constitution.
Appellants argued that the NDC failed to afford the Appellants adequate opportunity to present all their evidence in mitigation The NDCA is of the view that the Appellants had sufficient opportunity to have their witnesses available.
Furthermore, the NDCA is of the view that the Appendix to the ANC Constitution provides for the production of relevant documentation. From the correspondence between the parties, it appears that the Appellants rejected the NDC's offer to present some of the mitigation evidence in affidavit form. The NDCA is of the view that the NDC's offer was not intended to substitute the Appellants' right to call witnesses but to supplement the oral evidence given at the mitigation hearing.
Consequently, the NDCA finds that the Appellants' argument that the NDC failed to afford them adequate opportunity to present all their evidence in mitigation is dismissed.
Appellants argued that the NDC erred in failing to state which portions of the sanctions were related to which separate charge and consequently rendered it impossible for the Appellants to properly exercise their fundamental right of appeal as enshrined in the ANC Constitution
Having considered the arguments of both parties, the NDCA rules as follows:-
- In terms of the Appendix to the ANC Constitution, a disciplinary committee is required to make a finding based on the facts and evidence and impose an appropriate sanction ranging from reprimand to expulsion.
- The discretion given to a disciplinary committee in terms of the ANC Constitution is to consider all the convictions cumulatively and impose an appropriate sanction.
- Unlike in a criminal trial, there is no obligation on a disciplinary committee to impose a sanction in respect of each charge for which a charged member has been found guilty.
- The Appellants' argument that the imposition of a single sanction would be prejudicial and would result in the duplication of convictions and sanctions is without substance because a single sanction would not necessarily result in a duplication of sanctions and cannot possibly result in a duplication of convictions.
- Even if it were permissible, the imposition of different sanctions against a charged member in a disciplinary hearing would result in the impossibility of deciding which sanction to enforce. For example, if a charged member is reprimanded on Charge One and suspended on Charge Two, there would be uncertainty as to which sanction to enforce.
- It is for this reason that the ANC Constitution, in the view of the NDCA, directs a disciplinary committee at the end of the disciplinary proceedings to discuss the issues raised at the disciplinary proceedings in private and make a finding based on the facts and evidence of the case and decide a penalty.
Consequently, the Appellants' argument that the NDC's failure to state which portions of the sanctions were related to which separate charge rendered it impossible for the Appellants to properly exercise their fundamental right of appeal as enshrined in the ANC Constitution is dismissed.
Grounds of appeal based on the merits - Appellant Floyd Shivambu
Cde Floyd Shivambu was found guilty on two counts of contravening Rule 25.5 (o) of the ANC Constitution for swearing at a journalist and for issuing, in his capacity as spokesperson of the ANC Youth League, a statement on Botswana in contravention of ANC policy.
The Appellant advanced 8 arguments on the merits, all of which were dismissed by the NDCA and full reasons were provided in the NDCA Finding.
One of the arguments advanced by Appellant Shivambu was that the NDC failed to take into account the personal circumstances of the Appellant, more particularly that he was an employee of the ANC Youth League
The NDCA is of the view that disciplinary action is focused primarily on the contractual relationship between the organisation and the charged member. At the end of the disciplinary hearing a disciplinary committee could retain the membership contract (by reprimanding the member or imposing community service), suspend the contract (for a period of time and subject to conditions) or cancel the contract (by expulsion).
The only criteria for joining the ANC as a new member is that a person must be a South African citizen and at least 18 years old.
In the discharge of its duties, an ANC disciplinary committee is not obliged to consider the personal circumstances of the Appellant and the consequences that disciplinary action would visit upon him in his private life because these factors are not considered when a person joins the ANC and are not relevant to the contractual relationship between the ANC and its members.
The NDCA is satisfied with the approach adopted by the NDC which did not make any finding with regard to the employment contract between the Appellant and the ANC Youth League.
Consequently, the Appellant's argument that the NDC failed to take into account his personal circumstances, more particularly that he was an employee of the ANC Youth League, is dismissed.
Grounds of appeal based on the merits - Appellant Sindiso Magaqa
Cde Sindiso Magaqa was found guilty of contravening Rule 25.5 (o) of the ANC Constitution for issuing, in his capacity as Secretary General of the ANC Youth League, a derogatory and potentially defamatory statement about cde Malusi Gigaba.
The Appellant advanced 7 arguments on the merits, all of which were dismissed by the NDCA and full reasons were provided in the NDCA Finding.
Grounds of appeal on the merits - Appellant Julius Malema
Cde Julius Malema was found guilty of contravening Rule 25.5 (c) and Rule 25.5 (i) of the ANC Constitution for expressing his personal views at a press conference of the ANC Youth League on 31 July 2011 which sought to portray the ANC-led government and the ANC leadership under President Zuma in a negative light in relation to the African Agenda and which had the potential to sow division and disunity in the ANC AND for expressing his personal views on Botswana which contravened ANC policy.
The Appellant advanced 16 arguments on the merits, all of which were dismissed by the NDCA and full reasons were provided in the NDCA Finding.
Two of the arguments advanced by Appellant Malema are the following:-
The Appellant argued that the NDC's erroneous view that the he did not accept the NDC's finding of guilt is irreconcilable with the evidence
The Appellant argued that the NDC's erroneous view that the Appellant did not accept the finding of guilt is irreconcilable with the evidence that he was pleading with the NDC, inter alia:-
- To consider stripping him of his leadership position as the President of the ANC Youth League and even as PEC member of the Limpopo Province;
- To impose a condition for suspension that he should finish his Political Science degree in record time; and
- To bar him from holding any leadership positions for a period of time.
The NDCA considered the Appellant's evidence as a whole and found it to be contradictory. On the one hand the Appellant was pleading to the NDC not to take away his membership but on the other, he did not show any remorse or respect for the ANC Constitution and its structures.
Having had regard to the Appellant's evidence as a whole, the NDCA is not persuaded by the sincerity of the Appellant's plea. The NDCA confirms the NDC's finding that the Appellant did not accept his finding of guilt and was not capable of rehabilitation.
Consequently, the Appellant's argument that the NDC's erroneous view that the he did not accept the NDC's finding of guilt is irreconcilable with the evidence is dismissed.
The Appellant argued that the NDC erred in failing to appreciate the conceptual difference between not respecting the disciplinary processes of the NDC and the NDCA and contesting the contents of their outcomes
The Appellant argued that the NDC wrongly equated these two unrelated concepts and thereby came to the wrong conclusion that the Appellant did not respect the ANC Constitution despite evidence to the contrary.
The Appellant also argued that the NDC ought to have found that, given the possibility of the decision of the NDCA being overturned by the NEC or the National Conference, which are the highest decision making bodies in the ANC (i.e. higher than the NDC/NDCA), then the Appellant is quite entitled to continue contesting the correctness of the decisions of the lower structures.
The NDCA finds as follows:-
- The Appellant's understanding of the ANC Constitution is fundamentally flawed;
- The NDC, NDCA, NEC and National Conference are not in a hierarchical relationship as argued by the Appellant;
- The NDC and NDCA are structures appointed by the NEC to perform a duty on behalf of the ANC relating to discipline;
- The National Conference is the supreme ruling and controlling body of the ANC which is comprised of delegates elected by branches of the ANC and representation from the Provincial Executive Committees, the ANC Veterans League, the ANC Youth League and the ANC Women's League. The National Conference meets once every five years.
- The NEC is the highest organ of the ANC between national conferences and has the authority to lead the organisation, subject to the provisions of the ANC Constitution.
- According to the ANC Constitution, decisions of the NDCA are final.
- The NEC may, in its discretion, review a decision of the NDCA. The NEC's power of review does not encompass a further appeal, as argued by the Appellant, but affords the NEC an opportunity to review decisions of the NDCA to satisfy itself that natural justice has been afforded to a charged member.
By virtue of the Appellant's flawed understanding of the ANC Constitution, the NDCA further finds that the Appellant's argument of a conceptual difference between not respecting the disciplinary processes of the NDC and the NDCA and contesting the contents of their outcomes is misplaced.
The NDCA has not found any evidence to the contrary, as argued by the Appellant, which would have persuaded it to come to a different conclusion to that of the NDC.
Consequently, the Appellant's argument that the NDC erred in failing to appreciate the conceptual difference between not respecting the disciplinary processes of the NDC and the NDCA and contesting the contents of their outcomes is dismissed.
Having considered the grounds of appeal and the Heads of Argument, the NDCA rules as follows:-
APPEAL OF FLOYD SHIVAMBU
1. The appeal is dismissed.
2. The Respondent's argument that the sanction of the Appellant be increased to a suspension of 5 years was considered by the NDCA and rejected.
3. The sanction imposed by the NDC that the Appellant's ANC membership be suspended for a period of 3 years is confirmed.
4. This sanction is applicable to the Appellant's membership of the ANC Youth League.
APPEAL OF SINDISO MAGAQA
1. The appeal is dismissed.
2. Having had regard to all the circumstances concerning this appeal, the NDCA, in the exercise of its discretion, varies the sanction imposed by the NDC as follows:-
"The Appellant's ANC membership is suspended for a period of 1 year, which shall come into operation with immediate effect".
3. This sanction is applicable to the Appellant's membership of the ANC Youth League.
4. Consequently, cde Sindiso Magaqa shall vacate his position as Secretary General of the ANC Youth League.
APPEAL OF JULIUS MALEMA
1. The appeal is dismissed.
2. With regard to the Appellant's disciplinary hearing held in May 2010, the sanction imposed by the NDC that the Appellant's ANC membership be suspended for a period of 2 years is confirmed.
3. In respect of the present disciplinary hearing, the NDCA confirms the sanction imposed by the NDC that the Appellant be expelled from the ANC.
4. These sanctions are applicable to the Appellant's membership of the ANC Youth League.
Dated at Johannesburg this 24th day of April 2012
ANC NATIONAL DISCIPLINARY COMMITTEE OF APPEAL
ANC NATIONAL DISCIPLINARY COMMITTEE OF APPEAL
ANC NATIONAL DISCIPLINARY COMMITTEE OF APPEAL
ANC NATIONAL DISCIPLINARY COMMITTEE OF APPEAL
ANC NATIONAL DISCIPLINARY COMMITTEE OF APPEAL
Issued by the ANC NDCA, April 24 2012
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