IN THE DISCIPLINARY PROCEEDINGS
ECONOMIC FREEDOM FIGHTERS - Complainant
MPHO PAUL RAMAKATSA - Charged Member
ANDILE MNGXITAMA - Charged Member
KHANYISILE LITCHFIELD-TSHABALALA - Charged Member
LUCKY DILIZA TWALA - Charged Member
RULING OF THE NATIONAL DISCIPLINARY COMMITTEE (NDC)
1. This is a disciplinary hearing held in terms of the Constitution of the Economic Freedom Fighters (EFF) political party and as adopted at its National People's Assembly (NPA) held in Mangaung on 16 December 2014. The charged EFF members are:
1.1. Fighter Mpho Ramakatsa, who was the National Coordinator of the EFF from its inception in July 2013 until the NPA
1.2. Fighter Andile Mngxitama, who was previously a member of the (interim) Central Command Team (CCT) and War Council, respectively, until the NPA
1.3. Fighter Khanyisile Litchfield-Tshabalala, who was a member of the (interim) CCT until the NPA
1.4. Fighter Lucky Twala, who is an ordinary member of the EFF.
2. All four charged members are also Members of Parliament (MPs) at the National Assembly in Cape Town, having been so deployed to represent the voice of approximately 1.2 million voters who voted for the EFF nationwide in the national ballot in May 2014.
3. The members were originally charged separately and their charges will continue to be assessed separately. However, due to subsequent developments and the attitude adopted by them collectively and as a group, it became convenient and appropriate to conduct the proceedings simultaneously. This was done purely for reasons of practicality and convenience. The members' alleged transgressions can be considered separately, even where the alleged conduct was performed collectively; eg in respect of the media conference of 17 February 2015, which was attended and addressed by all four of them.
4. Before dealing with the charges and for reasons which will become clearer later in this ruling, it is appropriate to map out the evolution of the constitutional rules and procedures which will be applied in this matter: this being the first matter to sit before the NOC or any other disciplinary structure of the EFF since its formation. A more detailed analysis will be given so as to give guidance to other structures and to members who may wish to condition their conduct in the future of this relatively young organisation.
5. On 27 July 2013 and at its inaugural Founding National Assembly held in Soweto, the EFF adopted a Constitution to which its first Commander in Chief and President, as well as Ramakatsa in his capacity as the National Coordinator or interim General Secretary were all signatories. We shall refer to this document as the Interim Constitution.
6. The Interim Constitution contains both general constitutional provisions as well as a disciplinary code under the heading "Administration of Revolutionary Justice in the Economic Freedom Fighters", which starts at page 14 of the Interim Constitution. A copy of the Interim Constitution is available on the EFF, www.effighters. co. za, or for inspection. All leaders of the EFF are familiar with it.
7. On 16 December 2014, the NPA adopted a new amended Constitution, hereinafter referred to as "the current Constitution" or simply "the EFF Constitution". The effect of this was to replace the Interim Constitution. The NPA resolved to delegate the finalisation of a new Disciplinary Code to the incoming CCT. It was specifically resolved that in order to avoid a vacuum and until the adoption by the CCT of a new disciplinary code, the code contained in the Interim Constitution would continue to be operational.
8. On 8 February 2015, and at its meeting held at Ekudeni Resort in Muldersdrift, the CCT adopted a new disciplinary code under the heading "Code of Conduct and Revolutionary Discipline", otherwise referred to as the Revolutionary Discipline document.
9. In summary,therefore, the regulatory regime has evolved as follows:
9.1. From 27 July 2013 until 16 December 2014, the Interim Constitution and the document headed "Administration of Revolutionary Justice in the EFF" were binding upon all members,
9.2. From 16 December 2014 until 8 February 2015, the currentI EFF Constitution and the Revolutionary Justice document were binding, and
9.3. From 8 February until the next NPA, the EFF Constitution and the Revolutionary Discipline document are binding.
10. These documents contain both many similarities and differences.
11. In respect of the individual charged members, they each faced multiple charges which are set out in detail in the individual charge sheets attached hereto and which are discussed in greater detail below. In summary:
11.1. Fighter Mpho Paul Ramakatsa ("Ramakatsa") faced 5 (five) charges;
11.2. Fighter Andile Mngxitama ("Mngxitama") faced 8 (eight) charges;
11.3. Fighter Khanyisile Litchfield-Tshabalala ("Litchfield-Tshabalala") faced 4 (four) charges; and
11.4. Fighter Lucky Twala ("Twala") faced 5 (five) charges.
12. On 13 February 2012 and at a special meeting of the CCT held in Cape Town, a resolution was passed to charge the four members and to suspend them pending their disciplinary hearings in terms of the Constitution, read with the Code of Revolutionary Discipline.
13. In line with that resolution and in the exercise of his constitutional duties, the Secretary-General of the EFF caused suspension letters to be sent to the four members. The letters were dated 18 February 2015. As the relevant portions of the letters were similar and for convenience, we shall only quote the letter sent to Ramakatsa. It read as follows:
"Dear Fighter Paul
I hereby inform you of the Special War Council decision to place you under temporary suspension with immediate effect pending the hearing and finalisation of disciplinary proceedings against you. The temporary suspension, which is based on section 23 of the EFF Code of Conduct, is premised upon the following complaints received and involving a number of serious offences including that:
1. You have, on several times, granted radio and newspaper interviews giving misleading information to the public about the organisation and its elected leadership thus bringing it into disrepute and undermining its integrity.
2. You participated in organising and orchestrating misleading information and attacks to the organisation and its elected leadership in public during your press conference in Sandton thus bringing it into disrepute and undermining its integrity.
3. You addressed a meeting in Durban, a meeting organised by a person who resigned from EFF in the NPA and such person is perpetually attacking the organisation in public space including the media thus collaborating with enemies of the organisation to bring it into disrepute and undermine its integrity.
4. Notwithstanding a reply to your letter of concern on the NPA outcome, you have continued to spread disinformation about EFF NPA in public thus bringing the organisation into disrepute and undermining its integrity.
5. You have absented yourself from the debate of the state of the national address (parliamentary sitting) without any apology or notice to the organisation.
In view of the above, you are hereby informed that you are temporarily suspended with the following conditions:
1. You shall not participate in parliamentary and organisational activities for the duration of the suspension and the hearing.
2. You shall not wear the regalia or any cloth with insignia or symbols of the organisation for the duration of the suspension and the hearing.
3. You shall not present yourself or make a presentation to any media platform on matters related to EFF both outside and inside parliament as a member of the EFF.
4. You shall not communicate with any staff member or members of the organisation for the duration of both the suspension and hearing.
5. You should not attend, speak, present and act as a member of EFF during your suspension and hearing.
In terms of section 23 of the Code of Conduct, a member shall be given an urgent opportunity to show cause why a temporary suspension should not be imposed. Should you wish to avail yourself of that opportunity, please communicate with the Chairperson of the National Disciplinary Committee, Cmsr Dali Mpofu at 083 260 1433 ([email protected] .com) so that arrangements can be urgently made to make determination in that regard. In any event, a charge sheet will be served upon you in due course.
Revolutionary regards CMSR GODRICH GARDEE
SECRETARY GENERAL AND COMPLAINANT DATE: 18/02/2015'
14. In terms of clause D.23 of the Code of Revolutionary Discipline:
"In the case of serious offences and exceptional circumstances, a member may be temporarily suspended pending a disciplinary hearing. In this event, the member shall be given an urgent opportunity within 48 hours to show cause why such a temporary suspension should not be imposed. In this regard, the decision of the NOC shall be final and may only be reviewed by the National Officials. The temporary suspension shall lapse if the member is not charged within one month of its imposition."
15. None of the four charged members elected to challenge or anticipate their suspensions. Here we may pause to indicate that it was reported to the NOC that only Twala indeed telephoned the Chair of the NOC, as advised in the suspension letter. He indicated his preparedness to attend the hearing and made a request that it be held at a neutral venue other than the EFF Head Office as that may have been intimidatory in the then prevailing atmosphere. This request was conveyed to the Secretary-General, who accepted it and proceeded to hire a venue at the Midrand Protea Hotel.
16. It was against this background that the first sitting of the NOC in this matter was scheduled for 4 March 2015 at the Midrand Protea Hotel.
17. On 3 March 2015 and one day before the hearings, a letter addressed to the Chair of the NOC and the Secretary-General of the EFF was faxed from Hutcheon Attorneys to the EFF Head Office. It was co-signed by or on behalf of all four charged members and read as follows:
"Disciplinary process against Mpho Ramakatsa, Andile Mngxitama, Khanyisile Litchfield-Tshabalala and Lucky Diliza Twala, refer to the Disciplinary Process purportedly instituted against each one of the above by the War Council.
The inquiry is scheduled to commence before you as Chairperson on 4 March 2015.
We dispute the validity of the election of the Central Command Team (CCT) at the EFF's National People's Assembly in 2014 at Mangaung and the consequent appointment by the CCT of the War Council;
We have taken legal advice from our legal team around the process of finalising court papers for an application in the high court, Johannesburg. This will be filed and served shortly.
The validity or otherwise of the election of members of the two bodies obviously has an impact on the validity of the disciplinary processes against us, including both our suspensions and the disciplinary proceedings as well as your appointment and authority to chair the inquiry.
In view of the fact that your own election as Chairperson is the subject of the legal challenge,it is obviously inappropriate for you to sit as an independent Chairperson in the disciplinary inquiry.
For these reasons we do not recognise the validity of the decision to suspend and charge us orto appoint you as the Chair of the disciplinary inquiry against us.
We accordingly hereby give notice that we will not be attending the disciplinary inquiry. we call for it to be abandoned, failing that in the event that the inquiry proceeds in our absence and despite of our legal challenge, the issue of the processes instituted against us as well as your appointment as Chairperson and any actions as may be taken by you in that regard will be challenged in the high court application."
18. On 4 March 2015, the first sitting of the NOC was held at the agreed venue.
19. The National Prosecutor of the EFF, Mr Andries Nkome, who is a practising attorney and a member of the EFF, initiated the proceedings by first tabling the letter sent by the attorneys and signed by the charged members.
20. He moved an application that the hearing should continue in the absence of the charged members as they had voluntarily elected to absent themselves. In support of the application, which was obviously unopposed, he relied on clause
D.8 of the Code of Revolutionary Discipline, which reads as follows:
"The member shall be adequately warned of the consequences of his/her unauthorised failure to appear on the specified date, namely that the hearing may validly proceed without his or her participation."
21. For the applicability of this clause and in view of the fact that the charged members were not present, the NDC, in fairness to them, posed certain enquiries in order to satisfy itself that the charges had come to the notice of the charged members, that they had voluntarily elected not to attend and that the requisite warning had been communicated to them.
22. It was submitted and indeed established that:
22.1. All the charge sheets had been adequately served by sheriff and/or came to the notice of all four charged members,
22.2. From their letter, their decision had been deliberate and voluntary, and
22.3. All the charge sheets contained the following warning:
"You are warned that in terms of Sub-Rule 8 of the Disciplinary Procedure section of the Code of Revolutionary Discipline of the EFF and the EFF Constitution, the National Disciplinary Committee may order that the proceedings continue in your absence if you do not appear at the venue and at the time determined for the proceedings, or do not remain in attendance during the proceedings until excused by the Chairperson."
23. After hearing the submissions, and based on the grounds advanced, the NDC adjourned the proceedings to deliberate and later retuned a ruling in favour of the National Prosecutor's unopposed application, ie to continue the proceedings in the absence of the charged members and interms of clause D.8.
24. The first witness called by the National Prosecutor was Mr Rirhandzu Baloyi ("Baloyi"). After being duly sworn in, he testified that:
24.1. He was in the employ of the EFF as the National Financial Accountant I
Administrator based at the EFF Head Office;
24.2. On 15 January 2015, he received a call from Mngxitama requesting to meet him later that evening. They met later in the suburb of Melville;
24.3. After complaining about what happened in the NPA, Mngxitama told Baloyi that in his view, there was a lot of fraud and mismanagement of funds in the EFF and he wanted to protect Baloyi from impending arrests;
24.4. Baloyi responded by saying that, as the highest official in the financial department, he knew nothing about the alleged financial mismanagement;
24.5. Baloyi got the impression that Mngxitama did not get what he wanted and he promised thaihe wouici cali him again;
24.6. On the following day, 16 January 2015, Mngxitama called Baloyi again repeatedly and asked him to drive to Sandton somewhere next to Mandela Square. On his arrival there, Mngxitama jumped into Baloyi's car and directed him to a house, which later turned out to belong to Kenny Kunene, a former EFF member who is currently a leader of a rival opposition party called the Patriotic Alliance (PA). Kunene was there together with another PA leader, Gayton McKenzie;
24.7. McKenzie told Baloyi that on Monday (19 January 2015), the Hawks were going to arrest Baloyi and the EFF President, Julius Materna, for collusion to enrich Malema. Mngxitama, Kunene and McKenzie had allegedly negotiated immunity for Baloyi;
24.8. Baloyi was asked to make a statement to say he knew about the alleged corruption and also he had to give the three gentlemen any documents from the EFF office which could be used by the Hawks. Then they would say to the Hawks: "Look,Baloyidoes not know anything, he is co-operating, let us not arrest him";
24.9. They were joined by a "lawyer" called Bruce, who interrogated Baloyi. The gist of what was being said was that the EFF would bail out its President and then pile all the blame on Baloyi;
24.10. Baloyi testified that he was convinced that the aiieged arrests were imminent and that in order to avoid being arrested, he had to surrender the EFF's financial documents to Mngxitama, Kunene, McKenzie and the "lawyer". He stole EFF information and handed it over to them. He feared for his family and children should he be arrested;
24.11. That Sunday, a story was leaked to the City Press newspaper about the purchase of a Golf GTI car by the EFF. Baloyi knew that this came from the information he had given to Mngxitama and company. A few days later, another story was leaked to the Citizen newspaper;
24.12. This convinced Baloyi that he had been duped and used. In his words, he testified that "in hindsight (I realised that) there was no police issue. In hindsight they were just trying to get information to embarrass the organisation";
24.13. He testified that he kept on insisting to the person that there was no corruption and that he had never worked directly with the President of the EFF or received instructions from him at which he was informed that merely because of his position as an "accounting officer', he would get 12 years imprisonment for fraud. This looked real to him at the time;
24.14. He explained the issue of the purchase of the Golf GTI and that there was nothing untoward in respect thereof;
24.15. He further testified that he later met with the "lawyer", who brought someone presented as a member of the Hawks, with whom the immunity "deal" was going to be cut. The "Hawks guy'' later turned out to be a journalist from City Press;
24.16. He had an historical relationship of trust with Mngxitama because they both used to belong to an organisation called SN1 before the formation of the EFF;
24.17. Mngxitama also told him that Wiekus Kotze, who had worked with Baloyi at some stage in the finance office, had also given them (Mngxitama, Kunene and McKenzie) some EFF information;
24.18. Later on, Baloyi confronted Mngxitama for having "hoodwinked" him. He also wrote Mngxitama a detailed letter outlining how he was dragged into the scheme. He wrote:
"You saw my employment in the finance department as an opportunity for you to steal internalorganisational documents and records and leaked those to the media with the sole intention of destroying its integrity in the eyes of South Africa"; and
"/ have in my possession all the text messages wherein you were pressurising me to steal internal organisational records so that you can use them to undermine the integrity of the EFP'.
25. Baloyi was also subjected to some intense questioning by members of the NOC and he stuck to his version.
26. The second witness called was the Secretary-General, Godrich Gardee. What follows is a summary of the gist of his evidence:
26.1. He is the duly elected Secretary-General of the EFF. This makes him the client records officer and the chief organiser of the organisation. He is the effective"chief executive officer of the EFP'. He is also a Member of Parliament;
26.2. At the NPA at which he was elected, the EFF had adopted a number of documents, including the Organisational Report which was presented by Ramakatsa, the credentials, commissions and the EFF Constitution;
26.3. All processes leading up to the NPA were sanctioned by the Central Command Team and the War Council of the EFF. Gardee was a member of both of these structures;
26.4. The EFF Constitution was adopted on 16 December 2014 and the Code of Conduct and Revolutionary Discipline was adopted on 8 February 2015 by the CCT, as mandated by the NPA. The last page of the Constitution reads:
"The CCT shall adopt a Code of Conduct which will be the EFF's guide on how issues of discipline and conduct are internally handled. The
Code of Conduct shall be consistent with the organisational principles of the EFF contained in the Constitution."
26.5. He testified about a press conference which was planned to be held on 12 February 2015 and which he observed on live television. He testified that this was done without the authorisation of the EFF and in which Mngxitama, Litchfield-Tshabalala and Twala had participated. A video of this event was shown to the NOC;
26.6. He testified about the history of the disciplinary proceedings and the relevant correspondence;
26.7. He confirmed having received information from Baloyi regarding his handing over of EFF information to Mngxitama, Kunene and McKenzie, the latter two being leaders of the Patriotic Alliance political party;
26.8. He stated that the accusation made by the charged members that the EFF leadership had met with the ANC and struck a deal about the expulsion of seven MPs was false;
26.9. He identified the four charged members as attendees at the 17 February 2015 further press conference held in Johannesburg;
26.10. He identified the allegations of a secret meeting between the EFF leadership and the ANC in Maputo as false;
26.11. He similarly branded as false the allegations of financial mismanagement in the EFF;
26.12. He testified about the unauthorised rally held on 21 February 2015 and identified the participant charged members. A video clip of the rally was shown to the NOC;
26.13. He stated the suspension conditions given to the charged members by him and which they had allegedly breached;
26.14. Gardee gave testimony in respect of all the remaining charges made against the charged members. Some specific evidence will be specified in the discussion of the individual charges below. He also made reference to the relevant documentation in the bundles.
27. The evidence of the two witnesses was accompanied by a lot of documentary, video and audio evidence. Most of the documentary evidence was compiled in separate files in respect of the four charged members. These were labelled as Exhibits "PR" in respect of Ramakatsa, Mngxitama (Exhibit "AM"), Litchfield Tshabalala (Exhibit "KT") and Twala (Exhibit "LT") respectively. The audio and video evidence was supplied later. This necessitated a lot of subsequent reading, listening and watching.
28. After calling the two witnesses and subject to the supplying of the extra evidence referred to above, the National Prosecutor closed his case. The matter was adjourned sine die (ie without a specific date) to enable the collection of the outstanding evidence and a copy of the transcript.
29. Once all these matters were attended to, a new date for the continuation of the hearing was set for 24 March 2015. in anticipation oi those proceedings and in spite of the earlier attitude adopted by the charged members, the EFF saw it fit once again to invite the participation of the charged members.
30. Accordingly, another letter was addressed to them individually, inviting them to the next sitting of the NDC, sitting to hear whether or not they would be found guilty and if so to present evidence or argument in mitigation of sentence.
31. Once again, on the day preceding the hearing, a letter was recieved from Hutcheon Attorneys, signed by Mngxitama on his own behalf and on behalf of the other three, in which they turned down the invitation on more or less the same grounds as before.
32. At the hearing on 24 March 2015, the National Prosecutor called only one witness in aggravation of sentence. Due to the stance adopted by the charged members, no evidence was led in mitigation of sentence. The issues raised in aggravation will be dealt with below in the section dealing with Sentence.
33. That then was the end of the disciplinary hearing. The hearing was adjourned to allow the NDC to deliberate and pronounce its findings.
EVALUATION OF THE EVIDENCE
34. For obvious reasons, the evidence led by the prosecution stands unchallenged. However, and in fairness to the charged members, members of the NDC did direct some questions to the witnesses and/or the Naiionai Prosecutor whenever it appeared that there may be material which would have been helpful to the charged members had they been present. Some of the decisions below, which are favourable to the charged members, include findings of NOT GUILTY in respect of certain of the charges, and were established in the course of such questioning by the NOC itself.
35. For the sake of convenience and time-saving, the charges which will be first evaluated are those which are common to alt four charged members. This will avoid unnecessary repetition. It must however always be appreciated that the members were charged as individual fighters and not as "co-accused".
36. Before doing so, it would be appropriate to deal upfront with the dynamics of timing in relation to some of the charges.
37. All the charge sheets begin with the following extract from the EFF Constitution:
"Every member of the EFF shall have a duty:
1) To be loyal to the EFF;
2) To obseNe and respect the Policies, Resolutions, Decisions of the National People's Assembly, Central Command Team, all constitutional structures and the Rules and Regulations of the EFF;
3) To constantly and continuously strive to raise the level of his/her own political consciousness and understanding of EFF Policies, Resolutions, Rules and Regulations;
4) To strengthen, promote and defend the EFF and to popularize its politics, policies and programs;
5) To conduct herself/himself honestly and honourably in dealing with the EFF and the broader public and not to bring the EFF into disrepute or ridicule;
6) Toput the interests of the EFF above any other political considerations or personal ambitions.
You have acted in a manner that contravenes clause 6 of the Constitution of the Organization read with Section 23 of the EFF Code of Revolutionary Discipline and the CCT is satisfied and resolved that disciplinary proceedings be instituted against you.
You are therefore hereby charged with having committed the following offences and/ortransgressions:"
38. It will be noted that some of the charges, for example, relating to bringing the organisation into disrepute, have their origins in all the historical EFF documents which regulate the behaviour and conduct of members.
39. However, the NOC has taken the strict view that since the charge sheets are specifically signposted at 16 December 2014, ie the date of the adoption of the current Constitution, any transgressions which took place before that date ought properly to be disregarded and a finding of NOT GUilTY be returned in respect thereof. In strict law, such a finding would be contestable on the basis that the charged members did not plead. However, it must be borne in mind that this is not a court of law but an internal disciplinary proceeding in which fairness is an overriding factor.
40. In line with this reasoning, Charge One against Mngxitama must fall away and he must be acquitted in respect thereof. That charge relates to an alleged failure to attend to a commission at the NPA on 15 December 2014. Since that date falls outside of the period 16 December 2014 to date, and whatever the merits of the evidence in relation thereto, the charged member is hereby found NOT GUilTY and discharged.
THE REMAINING CHARGES
41. The first group of charges relate to those which are common to three or all four of the charged members. These will now be dealt with separately.
A. Media I Press Conference of 12 February 2015
42. The first charge which affects more than one charged member pertains to an unauthorised press conference convened and/or attended by Mngxitama, Tshabalala-Litchfield and Twala in Cape Town on 12 February 2015. Ramakatsa is not affected by this particular charge.
43. According to the evidence, the said media conference involved well-publicised events in which some members of the EFF successfully stopped the said media conference. Their own conduct is not a subject of this enquiry. It may or may not feature in separate proceedings at provincial level, unless it is brought to the attention of the NOC in the form of a complaint or referral.
44. What has been established is that the said media conference was not authorised by the EFF and that this was known and/or communicated to the three charged members by the Chairperson of the EFF in the Western Cape. It was also reported that certain members of the EFF had expressed that the three would have been free to speak to the media but not under the auspices of the EFF or while wearing EFF gear. It was further reported that an EFF T-shirt was confiscated from Mngxitama.
45. The three charged members can be clearly identified from the video footage entered into evidence. Further footage was provided in which Mngxitama and Litchfield-Tshabalala confirmed the media conference and continued to speak to the eNCA television network later on the said day about the issues which they would have raised at the media conference. Specifically and in short, they accused the EFF leadership of having concluded a conspiratorial deal with the ruling party to expel from parliament 7 (seven) unnamed Members of Parliament in exchange for not raising the issue of President Zuma having to pay back the money used in Nkandla. If this were indeed so, then it would be a serious transgression and betrayal of EFF supporters on the part of the EFF leadership. Other serious allegations were made against the leadership in the footage but it is sufficient to deal with the alleged conspiracy with the ANC as that would have been serious enough if established.
46. The prosecution relied on the evidence of Godrich Gardee ("the SG") in respect of this charge (together with the video evidence already referred to the SG), who testified that:
46.1. No member is allowed simply lo address the nationai and international media without authorisation;
46.2. The three members did not seek or obtain such authorisation;
46.3. The accusations which they made to the public were false, in that no such deal was ever mooted or concluded between the EFF leadership and the ANC;
46.4. It was illogical to suggest that the EFF needed to make a deal with the ANC in order to "expel' seven members of Parliament;
46.5. The identity of the seven MPs was to this day unknown.
47. In fact, ANC parliamentary leaders who were also interviewed by eNCA on the same day rubbished the claims and attributed them to ignorance of how parliament works.
48. Rules 8.1.9, 1.10 and 1.11 of the Code of Revolutionary Justice reads as follows:
"1. No EFF member shall commit or participate in conduct, including utterances,which amounts to:
1.9 deliberate gross misrepresentation and distortion of facts;
1.10 discussing organisational difference in the public domain without the specific authorisation of the CCT;
1.11 defining himself or herself outside the organisational structures and discipline;"
49. No evidence was led to justify the conduct of the relevant charged members.
50. In the circumstances, the transgressions contained in this charge have been proved by the prosecution on a balance of probabilities.
51. Mngxitama, Litchfield-Tshabalala and Twala are accordingly found GUILTY of this charge.
B. Failure to attend SONA
52. This charge does not apply to Ramakatsa as he attended the sitting. The other three are all affected.
53. The State of the Nation Address (SONA) is a big day in the calendar of parliament. In 2015, it was particularly the case in that the country anticipated a showdown between the EFF and President Zuma in respect of the Public Protector's report into alleged spending of taxpayers' money to build his private home in Nkandla.
54. Gardee testified that the three affected members and MPs failed to attend parliament on 12 February 2015. No contrary evidence was given. The prosecution therefore discharged its duty to prove that they failed to attend. Gardee, who would have known, also confirmed that no leave of absence was requested or granted by the EFF to them and no explanation has ever been forwarded.
55. Rule 8.1.16 of the Code of Revolutionary Discipline reads:
"No EFF member shall commit or participate in conduct, including utterances, which amounts tofailure or refusal to carry out officially mandated duties and/or deployments".
56. The evidence was also led to the effect that they continued to absent themselves from parliament untiltheir suspensions, without authorisation. This goes to their intention to do so.
57. According to the evidence, the three members did fail or refuse to carry out their official parliamentary duties on the occasion.
58. They are therefore found GUi TY in respect of this charge.
C. Media I Press Conference of 17 February 2015
59. This charge implicates all four members.
60. According to the oral and video evidence on 17 February 2015 in Sandton, all four members attended and addressed a media conference in which a number of serious allegations of fraud, corruption, thuggery and attempted murder were made by them about the President of the EFF and other leaders. These allegations were also contained in a lengthy document read out at the said media conference. The document was apparently either written by all of them or they openly associated themselves with its contents.
61. Among the accusations made by the four members against the EFF leadership were those specified in the charge sheets, namely:
61.1. The President of the EFF met with members / leaders of the ANC, including President Zuma, in Mozambique to discuss his return to the ANC;
61.2. The leadership of the EFF ordered the assault of the mother of one of the EFF members in Soweto during the preceding weekend;
61.3. The President and Deputy President of the EFF did not pay the monthly percentage of salary paid by other MPs to the EFF;
61.4. The President of the EFF broke an EFF boycott of Woolworths by buying goods there.
62. The NOC was supplied with the lengthy media statement headed "Media Statement of Four EFF MPs ... 7 (sic) February 2015- Johannesburg. Issued by: Khanyisile Litchfield-Tshabalala, Andile Mngxitama and Lucky Twala, Mpho Ramakatsa, (all MPs)." Some of the extracts from the statement include:
62.1. " We today can reveal that top leadership of the EFF is involved in assassination attempts against the life of Commissar Mngxitama ..."
62.2. "We also wish for the nation to know that a hit man has been sought in foreign lands to assassinate Commissar Mpho Ramakatsa ...".
62.3. "We have seen lots of information that points to wrongdoing in the EFF. We have been given this information by many sources and we have sought to verify it as far aspossible. We have not shared this information with anyone or hostile forces."
62.4. "Floyd Shivambu now drives a top-of-the-range Porsche. His MP salary makes such a purchase impossible. 'Where does he get such money from? The EFF coffers or private donors?'
62.5. " The corruption of the ideals of EFF was again demonstrated in the attempt to enter into a secret deal with the ANG to expel seven EFF MPs. The worst element of this deal is that it sought to use the Pay Back the Money campaign as a bargaining chip. EFF leaders offered peace for the state of the nation address in exchange for the ANG conceding to their demand for the expulsion of seven MPs."
62.6. "We can reveal that a faction of the ANG is working closely with the topleadership of the EFF to ensure that EFF is incorporated into the ANC. ...
We know that Julius Malema was at Maputo at the same time as President Zuma earlier this year."
62.7. " The leadership of EFF is busy reducing our party into something like a Mexican drug cartel that runs things from prison."
63. In short, Gardee testified that all these allegations are pure lies and fabrications. No evidence was led to gainsay the falsity of the allegations. In fact, at the press conference, journalists expressed frustration and demanded evidence to back the allegations, which was not forthcoming.
64. If true, some of these allegations would have constituted a prima facie betrayal of the EFF and its membership.
65. Needless to say, Gardee testified that the media conference was also unauthorised by the EFF. His evidence to this effect must also be accepted as it was untested and uncontradicted.
66. In addition to the provisions of the Constitution and the Rules relating to authorisation of meetings (8.1.9, 1.10 and 1.11 quoted above), this charge is also premised upon Rule B.1.28, which prohibits the making of:
"false accusations or statements against any other member or against the CCT'
67. From all the evidence and what is stated above, it follows that the four members are hereby found GUi TY on this charge.
D. Bloemfontein Rally of 21February 2015
68. This charge does not affect Twala. All the other three are implicated.
69. In short and according to the oral and video evidence, the charged members convened and/or attended a "protesf' rally and invited other EFF members. Although poorly attended reportedly by about 200 or so people, the rally was covered extensively in the mass media. The three charged members (ie Ramakatsa, Mngxitama and Litchfield-Tshabalala) addressed the rally and continued to make disparaging remarks about the EFF leadership.
70. According to Gardee, the EFF never authorised the holding of the said rally. On the contrary, his evidence was that the EFF had released a statement warning its members not to attend the said rally, hence it is dubbed both unauthorised and "prohibited'.
71. No evidence was given to gainsay the testimony that the rally was indeed both unauthorised and prohibited.
72. An important aspect of this charge is that the rally, which was convened, attended and addressed by the charged members, took place three days after they were served with their suspension letters and conditions. Those conditions included specifically not participating in EFF activities, not wearing party regalia or gear, not presenting themselves as EFF members, etc.
73. Clause B.1.23 of the Code of Revolutionary Justice prohibits the:
"undermining and disobeying decisions of higher structures and officials".
74. By their actions connected with the said rally, the affected members not only breached their suspensions but also disobeyed the decisions of higher structures in breach of clause B.1.23.
75. Accordingly we find them GUilTY of this charge.
E. Charges which apply only to each specific individual member
76. With the exception of Litchfield-Tshabalala, who is only charged with the abvovementioned offences common to two or three of the others, the remainder of the members also face one or more charges specifically and only directed at each individually. We now deal with those members who face such additional charges.
77. Ramakatsa faces two additional charges.
Counter-revolutionary meeting in Durban
78. Sufficient documentary evidence was presented, notably articles and photographs appearing in the Citizen newspaper, to prove that Ramakatsa addressed a meeting in EFF regalia to launch a rival organisation ca1ied the Co operative Revolutionary Movement or "CRM". The meeting was attended by other disgruntled members, one of whom was identified as having resigned for the racist reason that he was "not prepared to be Jed by Indians", a statement which on its own runs against EFF policy. That person, one Nhlanhla Buthelezi, was quoted as follows at the meeting attended by Ramakatsa:
"Unlike the EFF under Malema whose programme is to see President Jacob Zuma paying back the money, we would like to see the poor accessing economic opportunities currently out there. We want to assist our people to have access to land within the existing constitutional framework - not through land grabs, as being encouraged by Materna and certain EFF leaders."
79. There can be little doubt that some of these statements are in direct conflict with resolutions adopted by the EFF membership at the NPA. For example, the conference was very clear that the return of the land can never be achieved "within the existing constitutional frameworl<', more particularly with reference to section 25 of the Constitution, otherwise known as the property clause. Mngxitama is on record as having offered a joint vote between the ANC and the EFF to ensure a constitutional repeal or significant amendment of section 25 of the Constitution. The evidence was that Mngxitama was scheduled to have chaired the NPA commission to discuss Land Revolution and he absconded without apology or explanation.
80. The NDC raised the question with the National Prosecutor as to the competency of this charge in light of the fact that the alleged transgression occurred on 31 January 2015, before the adoption of the Code of Revolutionary Discipline on 8 February 2015. The response was that it fell in the period when the old disciplinary code was still operational per NPA resolution.
81. To avoid this debate and without deciding the question of timelines, we choose to anchor this transgression directly on section 6(6) of the Constitution, which is cited in the charge sheet sent to Ramakatsa. That section enjoins EFF members:
"to put the interests of the EFF above any other political considerations or personal ambitions".
82. In addition,section 4.3 of the EFF Constitution provides that:
"All members of the EFF may not join, participate or associate in any organisation and activities whose aims and objectives are inconsistent and contradictory with those of the EFF."
83. In the circumstances, and even if it could have been argued by the charged member if he had chosen to participate in the proceedings, that the Code of Revolutionary practice did not, strictly speaking, cover this transgression, we hold that it is sufficiently covered by the Constitution itself (and indeed by the previous code).
84. We accordingly find Ramakatsa GUi TY of this offence.
85. The second charge involves comments allegedly made by Ramakatsa in the public domain in interviews with the Citizen newspaper, Lesedi FM and Power FM concerning his views on the proceedings of the NPA.
86. Although we were supplied with audio evidence of specifically the Power FM interview, we find Ramakatsa NOT GUILTY of this particular charge on the basis that it is a duplication of Charge Four, which deals with the media conference of 17 February 2015. In all the said interviews, as well as the media conference, more or less the same allegations were made. It would be quite inappropriate to charge a person separately in respect of each follow-up interview with each media house if the content of the utterances is largely similar.
87. Mngxitama faces 4 (four) additional charges.
88. The first, Charge One, relates to the alleged abandonment of a commission on
15 December 2014. This matter has already been discussed above in paragraphs 39 and 40 and the member was found NOT GUilTY due to the technicality that it took place on the day before the adoption of the Constitution.
89. It may be convenient at this stage to quickly dispose of another additional charge, namely Charge Eight, related to alleged abuse of social media platforms and discrediting the leadership.
90. The only evidence presented to support this charge is one twitter message, which reads thus:
"For me the question is very easy. Why s the EFF leadership dragging us all through this to defend a convicted murderer? This is my only issue."
91. Although it is suggestive, we find that this message standing alone does not justify a conviction on this charge. The member is accordingly found NOT GUi lTY on this charge.
Theft of EFF financial documents
92. Perhaps the most serious allegations made against Mngxitama alone relate to the evidence of BALOYI and the removal of official documents from the EFF office into the hands of a rival opposition party which is in competition with the EFF.
93. Baloyi's evidence was dedicated to the issues raised in this charge. His evidence has already been outlined in paragraph 24 above and will not be repeated here.
94. Due to the seriousness of these allegations and the fact that the member was not present or represented, members of the NOC questioned Baloyi extensively regarding his own role, his motives and credibility. Despite this, his evidence remained intact and was corroborated by the letter he produced as having been addressed to Mngxitama once he (Baloyi) realised that he had been duped and "used', according to his subsequent assessment.
95. In all the circumstances, the evidence points only in one direction and we accordingly find the member GUilTY of incitement of a staff member to steal organisational documents and also GUi lTY of the related charge of receiving stolen organisational property knowing it to be stolen.
96. Twala faces one additional charge - pointing a firearm.
97. It is alleged that Twala breached the provisions of clause B.1.19 of the Code in that, on or about 17 February 2015 (at the media conference held in Sandton), he brandished or pointed a firearm at members of the public and the media.
98. Firstly, there was insufficient evidence to sustain these allegations.
99. Moreover, and even if there was such evidence, it must be borne in mind that clause 8.1.19 prohibits:
"participating in violent political activities without a validjustification, such as self-defence, provocation, etc" (emphasis added)
100. There is no evidence that if the gun was brandished at all, it was done for political reasons. If not, then this would be a matter for the police and not for the EFF to deal with.
101. Also, it is arguable that the onus should shift to the EFF to prove the absence of a justification, which was not done.
102. For these reasons, the EFF has failed to prove the guilt of the member on a balance of probabilities. He is accordingly found NOT GUilTY.
103. Due to the multiplicity of charges and charged members and for ease of reference, a separate schedule will be provided in which the charges faced by each member and the finding of GUi lTY or otherwise is summarized.
104. It now remains for us to pronounce upon the sentence(s) or sanctions to be imposed in respect of those charges where a finding of GUilTY has been made.
105. It has already been indicated that a second invitation was extended to the charged members to give evidence in mitigation of sentence in the event that they were to be found GUi TY of any transgression, which invitation was again turned down. In the circumstances, and after the pronouncement of the verdicts, the NDC was only presented with evidence in aggravation led by the National Prosecutor, who called one witness, Mr Godrich Gardee, the SG of the EFF. The essence of his evidence was that:
105.1. The transgressions for which the member had been convicted constituted very serious offences which threatened the existence of the organisation.
105.2. As leaders of the EFF during the interim period immediately preceding the NPA and as MPS, the charged members were familiar with organisational documents, how to access them and generally with organisational protocol. Ramakatsa, as the erstwhile acting Secretary General and second-in-command of the EFF, was the previous custodian of organisational documents and the maintenance of discipline.
105.3. With the exception of Twala, the charged members served in the highest decision-making structures of the organisation. These structures had been responsible for the organisation of the NPA. The charged members had participated in the NPA until such time that they failed to be elected into the Central Command Team's Top Six or had later declined nomination into the additional members thereof.
105.4. The charged members had failed to exhaust internal remedies to air any grievances which they may have had and instead chose to air their problems on unauthorised public platforms, thus deliberately bringing the organisation into disrepute and sowing disunity in its ranks.
105.5. The failure to attend parliament was a dereliction of their duties, not only to the organisation but also to the approximately 1.2 million voters who had voted them into parliament.
105.6. The failure to obey their conditions of suspension showed a total defiance and non-recognition of the structures and discipline of the EFF.
105.7. The derogatory and insulting statements they made about the EFF leadership were false.
105.8. In the few days before the finalisation of their NOC matter, they had further defied their suspension conditions by attending parliament but without making any contact with the EFF's parliamentary leadership, such as the Chief Whip. Only Ramakatsa was not affected by this as he had not attended parliament.
105.9. It was impossible or untenable to run the organisation while these disruptions of its activities were continuing.
105.10. Their continued use of party clothing was causing confusion among the membership.
106. Thereafter, the National Prosecutor did not call any further witnesses. He proceeded to confirm that all the outstanding evidence and the transcript of the record had been supplied to the NDC, for which we are grateful. He then argued his case on sentence. Essentially, he relied on the points raised by Gardee and called for the maximum sentence, namely expulsion.
107. The NDC adjourned the proceedings without a date, to allow for time to evaluate all the evidence and submission made.
EVALUATION BY THE NDC IN RESPECT OF SENTENCE
108. We repeat that this is the very first matter to serve before the NDC and indeed any of the disciplinary structures of the EFF since its inception.
109. The EFF is the youngest political party in South Africa. Essentially, it is still in its formative or infancy stage.
110. In spite of this, it is also the third largest party represented in the national parliament and the second largest or official opposition in two of South Africa's nine provinces. This means that it has to grow and mature very fast. The EFF obtained close to 1.2 million votes in the national election alone and another 1 million-plus votes in the provincial ballots. It is therefore possible that it was voted for by more than 2 million people, either nationally or provincially or both. As this matter involves MPs in the National Assembly, we will henceforth refer only to the 1.2 million national votes.
111. The EFF is a lawfully and duly registered political party. In terms of the Electoral Act, one of the requirements for lawful registration is the submission of a party's constitution. This must be so that the Independent Electoral Commission is satisfied that the rights and duties of members are properly defined and protected. Our system of parliamentary representation at both national and provincial levels (and to a lesser extent at local level) is based on proportional representation. This simply means that MPs are agents of their parties as the citizens vote for parties rather than individuals.
112. Depending on its performance at the polls, each party deploys its best and most trusted members or supporters to represent it at the various parliaments, with the view that they will best represent the wishes and aspirations of its voters.
113. The party then sets up extra structures in each legislature. Evidence was given about the role and function of the whippery in running and controlling the affairs and conduct of party business.
114. All party members are obviously subjected to the organisational discipline of the party, as outlined in its Constitution. In addition, those party members, who are also MPs, MPLs or Councillors, are also subjected to the party discipline imposed by its "whippery" or equivalent, as well as the rules of parliament or equivalent house.
115. In all this, the central principle is that it is the party and not the specific individual which is the principal agent of the voter. The entire system is premised on the Constitution of the Republic, the applicable electoral laws, the rules and procedures of each house, as well as the internal rules and procedures of each party. This forms one composite system of rules, which must all not be inconsistent with the Constitution of the Republic.
116. The Constitution of the Republic makes provision for a number of rights which are relevant to this discussion, including but not limited to the freedom of association (section 18), political rights (section 19), citizenship (section 20) and freedom of expression (section 16).
117. Bearing in mind that regulatory context, it is appropriate to zoom into the rules and procedures which govern the conduct of members in the EFF itself.
118. The central organising principle of the EFF is to be found in clause 1.4 of its Constitution, under the heading "What is the EFF?'', which reads as follows:
"The EFF is anti-capitalist, anti-racist, anti-sexist and anti-imperialist in its world outlook andis driven by sound democratic socialist values where the leadership is accountable to the membership which elected it."
119. Clause 4.1 provides:
"Any South African citizen not limited to any worker, peasant, revolutionary element, unemployed person, who has reached the age of eighteen and who accepts the Constitution of the EFF. joins a branch of the organisation and works actively in it, carries out the organisation's decisions, observes its discipline and pays membership dues, may become a member of the EFF." (emphasis added)
120. The membership declaration which is a prerequisite for membership states that each member commits:
"to abide by the principle of democratic centralism, which is that the individual is subordinate to the organisation. the minority is subordinate to the majority, the lower level is subordinate to the higher level and decisions of the upper structures are binding on the lower structures."
121. Clause 5.2, dealing with the rights of members, states:
"Every member of the EFF shall have the right to participate in meetings and all other activities organised by the EFF, unless decided otherwise by constitutional structures of the EFP'(emphasis added).
122. Clause 6 of the EFF Constitution deals with the duties of members. These have been cited in all the charge sheets but it may be useful herein to repeat some of the duties, which include the duty:
'I Tobe Joyal to the EFF
2) To observe and respect the Policies, Resolutions,, Decisions of the National People's Assembly, Central Command Team, all constitutional structures and Rules and Regulations of the EFF
5) To conduct herself/himself honestly and honourably in dealing with the EFF and the broader public and not to bring the EFF into disrepute or ridicule
6) To put the interests of the EFF above any other political considerations or personal ambitions."
123. Clause 7 states that all EFF members must take instructive note and internalize that:
"Inside the EFF. members are expected to thrash their differences, be faithful to the revolutionary ideas of the organisation through good and bad times and through this process look out for each other. In this way, we express our revolutionary outlook and collectivity while at the same time boosting the morale of membership" (emphasis added).
"Unity is a paramount principle of the EFF. The sowing of disunity within the ranks of the EFF and the oppressed will be severely dealt with."
124. As we are the National Disciplinary Committee of the EFF, our approach to this matter must of necessity be informed by the above constitutional context. So must the conduct of all those who have voluntarily chosen to become members of the EFF, without exception and irrespective of "seniority" at a specific point in time. After all, in a democratic organisation, such "seniority'' is also bestowed by the same members who adopt the Constitution. Seniority outside the ambit and jurisdiction of the Constitution is therefore a contradiction in terms.
125. It is self-evident that the allegations made against the charged members, if proved and established, constitute offences of the most serious nature when viewed against the constitutional context outlined above. However, the making of serious allegations and the proof thereof on a balance of probabilities are two different things.
126. From its inception, the EFF saw it fit to outline quite elaborate procedures, safeguards and checks and balances to protect the organisation against ill discipline but also to protect its members against unfairness, abuse of power and the use of disciplinary procedures to settle political scores. This much is self evident from any reading of the relevant regulatory documents.
127. This not being a court of law but an internal tribunal of a voluntary association, the issue of discipline must be approached from a holistic and purposive point of view rather than by an overly technical interpretation of each word, comma and full stop of the regulatory provision. Such an approach cannot however be used as an excuse to deviate from the clear and unambiguous text of those provisions.
128. Neither can the offences and the conduct of members be viewed technically, in a piecemeal fashion and out of its political context. The holistic approach also applies to this aspect. The EFF is a voluntary association involved in both parliamentary and extra-parliamentary politics and not in sport or scientific research, etc.
130. Having outlined the context and the approach we propose to adopt, we now proceed to deal with the offences for which the charged members have been found GUilTY and we consider what sanction(s) would be appropriate.
131. As in other contexts, the object of imposing a sanction must never be punishment
or vengeance but to balance the interests of the community, in this case the
membership of the EFF and its voters against those of the offender(s). The duty of the NOC is not to serve any individuals or groups of individuals but to serve the interests of the EFF itself and to do so impartially and without fear, favour or prejudice. It would be against the interests of the EFF and its community for any one of them to be subjected to a disciplinary process which is tainted by personal grudges, bias or pre-judged outcomes and the like.
132. For this reason, it is most regrettable that the charged members elected not to challenge their temporary suspensions and also not to attend the disciplinary hearings, as they are entitled to do in terms of the applicable rules. By so absenting themselves, they deprived themselves of the perfect opportunity to air their grievances internally and perhaps even to prove the validity of their complaints and numerous accusations. This would have gone a long way into disproving their alleged guilt or even better in establishing the potential guilt of those whom they fingered as the cause of their own disgruntlement.
133. Given the fact that there is a de facto leadership of the organisation as elected at the NPA, !r? which the charged members partic:pated both in its planning and execution, then they would have been better advised to grant that leadership even temporary recognition, even if their ultimate intention was to demonstrate its lack of legitimacy. To argue otherwise, as they did, leads to the absurd notion that the EFF is currently "non-existenf' , since the interim structures were dissolved at the NPA by the members and the current leadership is "illegitimate". This flies in the face of administrative and constitutional law, as well as the laws of simple logic.
134. The failure to attend the disciplinary hearings is also significant for a different reason. It is an act of disassociation from and non-recognition of the organisation itself and its constitution and constitutional structures. The Supreme Court of Appeal has described the contractual relationship between a political party and its members as any other voluntary association as follows:
"... a political party is a voluntary association founded on the basis of mutual agreement. Like any other voluntary association, the relationship between a political party and its members is acontractual one, the terms of the contract being contained in the constitution of the party' (see Matlhowa v Mahuma and Others [2009J All SA 238 SCA at para 8).135. Accordingly, it seems clear that renunciation of the Constitution is nothing but an indication of an intention no longer to be bound by the agreement which was concluded at the time of attainment of membership. It is tantamount to renouncing the membership itself and tendering an indirect resignation.
136. In another court case in the Cape, the sentiment expressed above was articulated as follows:
"a voluntary association is founded on the basis of mutual agreement which entails an intention to associate and consensus on the essential characteristics and objectives of the association ... (the) constitution of a voluntary association together with all rules or regulations (if such exist) collectively constitute the agreement entered into by its members" (emphasis added)
(See Yiba and Others v African Gospel Church 1999 (2) SA 949 (CPD) at 960)
137. This principle was reaffirmed more recently by Deputy Chief Justice Moseneke and Justice Jafta in the case of Ramakatsa and Others v Magashule and Others 2013 (2) BCLR 202 (CC) at para 79, as follows:
"it is necessary to outline the nature of the legal relationship that arises from membership of the ANG. At common law a voluntary association like the ANG is taken to have been created by agreement as it is not a body established by statute. The ANG' s constitution together with the audit guidelines and any other rules collectively constitute the terms of the agreement entered into by its members. Thus the relationship between
the party and its members is contractual. It is taken to be a unique contract'(emphasis added}.
138. Since the members referred us to court proceedings, we have also looked into the contents of their recent court application, which was also served upon members of the NOC in their capacities as members of the CCT. That matter will be decided by the courts and it would be inappropriate for us to dwell on the merits thereof. The only point which can be made is that there is no prayer in that application for the holding or reconvening of the NPA. In other words, according to the charged members, the EFF ought to be considered as non- existent forever or at best until the adjudication, including appeals, of the court application, which may take several years. Their court action is only aimed at nullifying the EFF from existence without replacing it with anything. The prayers contained in their notice of motion only ask for:
"1. setting aside the election during December 2014 of the current members of the Central Command Team (''the CCT'? of (the EFF);
2. setting aside the election by the CCT of the current members of the War Council of (the EFF) during December 2014;
3. declaring as null and void all decisions taken by the CCT in relation to (the EFF) subsequent to its election during December 2014;
4. declaring as null and void all decisions purportedly taken by the War Council in relation to the EFF pursuant to its election during December 2014 including the decisions purporting to suspend, institute and prosecute disciplinary proceedings against the applicants."
139. Needless to say, the EFF has opposed the application. As that matter may take years to resolve, it is clear that even if the relief sought by the charged members were to be granted, the correct position is that in the meantime, the EFF does exist and is governed by the instruments adopted at the NPA. To hold otherwise would precipitate a constitutional crisis of unimaginable proportions and may signal the collapse of the fifth democratic parliament.
140. If one follows their logic, then it is difficult to work out why the charged members have recently decided to attend parliament and to continue receiving their parliamentary salaries for the past four months or so. They can only attend parliament if they represent an existing organisation called the EFF. That organisation can only exist if it has a valid constitution, leadership capable of participating in parliament, to give mandates, deployments and to administer discipline. It cannot exist solely for the purposes of providing salaries for the charged members.
141. The stance adopted by the charged members is illogical, internally inconsistent, self-serving and unsustainable. The NOC therefore had no option but to continue the disciplinary hearings in their absence.
142. For reasons of practicality and convenience, we shall approach the issue of sanction by first considering those offences which are common to some or all of the charged members and then dealing with any additional individual convictions.
The failure to attend Parliament without apology
143. All four members have been found guilty of failing to attend parliament, both on
12 February and 17 February 2015. In the case of Ramakatsa, he was in attendance on 12 February.
144. Given the context painted above, this is a very serious offence indeed. It is an offence not only against the interests and rights of the EFF itself but of the 1 million plus voters who have entrusted their political voices for the next four years to the EFF and by extension to its MPs. According to the Constitution of the EFF, these would mostly be poor and working class people who are dependent on the EFF for the articulation of their democratic voice.
145. The issue here is not so much the non-attendance, which is in itself serious, but the disengagement and adoption of a hostile stance and total defiance and non recognition of the existence of the organisation, its leadership and even its structures such as the NOC.
146. Given our system of proportional representation, this attitude and conduct renders it impossible for the charged members to discharge their duties towards the organisation, its membership and its voters. It infringes upon the rights of all those categories of persons. It also infringes more broadly upon the interests of the South African citizenry who are dependent on a functional multi-party democratic system. It further infringes upon the rights and interests of taxpayers, who continue to pay the salaries of the charged members when they have painted themselves into a situation where they are incapable of discharging any duties.
147. With the EFF already being a minority party of 25 MPs in the 400 member National Assembly, its further reduction by four MPs diminishes its voice and effectiveness even further in that its voice is no longer "proportionate" to its popular support.
148. If the fac;ade membership is retained and given the current situation in which the legitimacy question of the EFF leadership and structures has been referred to court, this situation of impasse, ineffective representation and unjustified enrichment may prevail for the duration of the lifespan of the fifth democratic parliament.
149. The question is whether it can be said that the charged members are indeed"members" of the EFF other than in the technical sense of the word. That is, have they or have they not through their actions "defined themselves outside of the organisation?' If the organisation cannot command or instruct them to attend its disciplinary proceedings, to refrain from attending certain gatherings or media conferences, can they continue to be "representatives" of the EFF and its voters? We think not. Answers to these difficult questions must inform the question of sanction.
The convening, attendance at and addressing of unauthorised rallies and media conferences
150. Once again, it is clear from the evidence that all the members, at different times, have either convened, attended or addressed unauthorised and/or specifically prohibited "party" activities.
151. In a nutshell and without repeating the analysis outlined above, this is merely further proof that their conduct is beyond the reach and control of the EFF. They are operating as free agents not susceptible to organisational discipline and direction.
152. To say the least, the current situation is again untenable, unsustainable and prejudicial to the EFF, its members, its voters and all South African citizens and taxpayers.
153. The analysis dealt with above clearly relates to and encompasses all the charges, which involve failure to attend parliament, the attendance at unauthorised meetings and rallies, as well as the addressing of media conferences in which damaging allegations are made against the EFF and its leadership, not to mention the attendance of an organisation which contradicts the adopted policies of the EFF1 in the case of Ramakatsa.
154. The fact that such allegations which are made in the public domain have also been shown to be false is further aggravation.
155. Ironically, the more recent attendance in parliament of the charged members, in defiance of their conditions of suspension, tends to show that non-attendance and defiant attendance are two sides of the same coin and the latter is further and separate aggravation. The day cannot be far when the charged members will make inputs and speeches in parliament without being authorised or mandated to do so by the EFF. This would be a direct assault on the Constitution of the Republic and our current system of government based on proportional representation centred on political parties and not individuals. Such a constitutional crisis must be avoided at all costs.
156. For all intents and purposes, these members have defected from the EFF.
157. The third common aggravating factor is the non-observance of suspension conditions which affects all the charged members. The implications of this have already been referred to above. We now proceed to deal with additional convictions which attach to specific charged individuals in relation to the question of sentence.
158. Ramakatsa has been found guilty of the additional offence of addressing a counter-revolutionary meeting in Durban. From a sentencing point of view, the NDC is of the view that this offence should not necessarily attract an additional sanction. This is done in the interests of fairness to the member and to avoid duplication of sentences. The offence has already been taken into account in the context of general defiance and defining oneself outside the organisation and the de factodefection. In the context of the approach to sanction followed in this matter, it would be too onerous to impose a separate sentence.
159. It might be fairer tc regard this transgression as an aggravating factor in relation to the defiant stance of the member.
160. In addition to what is said above, which encompasses all four members, Mngxitama also faces the two additional charges of inducing and pressurising a staff member to steal EFFproperty and receiving such stolen property knowing it to be stolen.
161. For the sake of sentencing, these offences will be regarded as one as they form part of a single transaction aimed at discrediting and embarrassing the EFF, thereby bringing it into disrepute, as is clearly pronounced by the witness Baloyi.
162. Serious aggravating factors in this regard include:
162.1. The deceptive and dishonest methods he used to dupe Baloyi, as outlined in Baloyi's devastating letter to him, the contents of which have not been challenged before us;
162.2. Taking part in the impersonation of a police official; and
162.3. Above all, in the context of a political organisation, collaborating with leaders of a rival opposition party to discredit his own organisation. This must be the organisational equivalent of treason. In the commercial or sporting world, it can be likened to sharing trade or tactical secrets with a rival or competitor organisation. In the military or diplomatic world, it is tantamount to espionage. This is the classical example of disloyalty to an organisation or institution. It must be viewed against the fact that the first duty of an EF member, according to clause 6.1 of the EFF Constitution (and even the Interim Constitution) is:
"To be loyal to the EFP'.
163. This defines the essence of EFF membership. The behaviour and conduct in question is therefore incompatible with membership of the EFF. It is the ultimate act of betrayal, even assuming all the allegations of corruption, imminent arrests and Hawks investigations were completely true. As it happens, the allegations have also demonstrably been shown to be false.
164. Baloyi testified that he repeatedly told Mngxitama, Gayton McKenzie and Kenny Kunene that there was no corruption and that he had never interacted with the President of the EFF on any financial matters. He was then told that he would still be arrested by "the Hawks"on the basis that he was the financial decision maker and that therefore the proverbial buck stopped with him. He was also told that the EFF would abandon and forsake him as only the President of the EFF would be "bailed ouf' after the imminent arrests of Monday 19 January 2015.
Needless to say, no such arrests happened. What happened was the phased manipulation and leaking to the media of the information obtained from the stolen documents provided by Baloyi.
165. At this point, we pause to recommend that Baloyi's own conduct ought to be investigated unless his giving of evidence was the subject of some bargain or agreement which we were not made aware of. Given the sensitive position he holds, it needs to be established more concretely whether he was a willing participant in the scheme or whether indeed he was the victim of a clever and deceptive plot.
166. For present purposes, our concern is not with the conduct of Baloyi per se, or even that of McKenzie, Kunene or the City Press journalist implicated in the scheme. Our concern is with the conduct of Mngxitama as an EFF member, who is charged before us.
167. The sole question is whether the conduct for which he has been found GUilTY is compatible or congruent with his continued membership of the EFF. If not, he would be a suitable candidate for expulsion and, if not, then an alternative sanction of reprimand, community service or suspension must be considered.
168. Looking at the positions previously held by the four charged members, we observe that, with the exception of Twala, the three others, ie Ramakatsa, Mngxitama and Litchfield-Tshabalala, were members of the Central Command Team up until the NPA. Ramakatsa was the second-in-command of the EFF, its National Coordinator and the person responsible for the organisation of the conference. He delivered the organisational report, which indicated that the conference was properly constituted and organised in terms of the applicable rules and regulations. Mngxitama was also a member of the War Council, which collectively met on a day-to-day basis to prepare for the NPA. Litchfield Tshabalala was in the final CCT meeting which adopted the programme for the NPA.
169. Their participation continued up until such time that they failed to be elected into the Top Six positions, either because they declined the nominations (in the case of Mngxitama and Litchfield-Tshabalala) or did not reach the required threshold number to necessitate a vote (inthe case of Ramakatsa).
170. It is at the least possible that their hostilities are motivated by personal considerations and sour grapes at not being elected. Had they not elected to boycott the disciplinary proceedings, the question would have been posed to them by the NOC as to whether, if they had been elected to top positions, they would still be engaged in these activities of ill-discipline. Depending on the answer, it would have been possible to discern whether their actions were motivated by self-interest or broader and genuine concerns for the future of the EFF, as they have proclaimed in the media. As matters stand, this will remain a question for speculation.
171. What cannot be refuted is that their erstwhile leadership positions ought to have placed an additional burden of responsibility on how they approached the organisation in respect of whatever concerns they harboured. They must be assumed to have been familiar with the rules of behaviour in an organisation and with the constitutional rules and prescripts governing the EFF.
172. This fact must serve as an important aggravating factor for them and a mitigating factor in the case of Twala.
173. Twala has never been a leader of the EFF nor involved in conference preparations and the like. He is the only charged member who approached the Chair of the NOC and requested that the hearings be held at a neutral venue. Although this caused the organisation to incur extra and unnecessary expenses, which may be seen as an aggravating factor, it also indicates a certain level of co-operation on his part. It is possible that he was subsequently influenced against participation by the others, who were previous leaders of the EFF. Litchfield-Tshabalala was also a parliamentary whip of the EFF.
174. In addition, we also observed that Twala has never personally attacked or insulted the EFF and its leadership on a public platform, unlike the other three.
175. These considerations would justify the separate and more lenient treatment of Twala. The purpose of sentencing must also always take into account any possibility of redemption and rehabilitation on the part of an EFF member.
176. ln the result, and taking into account:
176.1. the political and constitutional context,
176.2. the unique system of political representation in South Africa,
176.3. the fact that all four charged members are also MPs,
176.4. the nature and seriousness of the offences,
176.5. the aggravating circumstances advanced and established,
176.6. the absence of mitigating factors,
176.7. the attitude of the charged members,
176.8. the purposes of sentencing, especially deterrence of other would-be offenders in the position of the charged members,
176.9. the top leadership positions previously occupied by the charged members, with the exception of Twala, and
176.10. the fact that this transgressions were generally similarly prohibited in the
Interim Constitution, which the members regarded as binding upon their conduct;
the NOC is left with no option but to impose the sanction of EXPULSION with immediate effect in respect of each of:
176.12. Mngxitama and
177. In the case of Twala, we impose a sanction of the SUSPENSION of his membership for a period of 3 (three) years. In turn, the sentence will be suspended for ONE YEAR provided that:
177.1. Within 10 days of the passing of the sentence, he apologises in writing to the EFF via its Secretary-General ;
177.2. After 10 days of the passing of the sentence, he attends parliament. (This is due to the fact that with the passing of this ruling, the temporary suspension (s) will, in any event, automatically lapse);
177.3. During the period of the suspension of the sentence, he is not found guilty of any offence contained in the EFF Constitution read with the Code of Conduct and Revolutionary Discipline.
178. The following words from the EFF Branch Induction Manual come to mind:
"As we build branches and the organisation at large, we must understand that in this mission, we are under no illusion that spies, information peddlers, careerists, attention-seekers and detractors will join us. Our obligation as Economic Freedom Fighters is to convert all these into real fighters for economic freedom in our lifetime, and will not force any member to join our movement. We will day after day preach the word of economic freedom in our lifetime, because the emancipation of South African will lead to the emancipation of the whole African continent."
179. The EFF Constitution, read with the Code of Revolutionary practice, more specifically clause D.24 thereof, provides that:
"Sentences of suspension and expulsion from the EFF shall not be executed until the finding has been confirmed by the CCT."
180. In the circumstances, the NOC shall forward a copy of this finding I ruling to the Secretary-General of the EFF, who must ensure that it is tabled before the CCT at its next sitting. Only thereafter shall the outcome be announced, including whatever decision shall have been taken by the CCT, which is the highest decision-making body of the EFF between national conferences.
181. A second important aspect concerns the status of the expelled members as Members of Parliament, in the event that the CCT confirms their expulsions.
182. In view of the summary and/or immediate effect of the expulsions and the circumstances thereof, it follows that the expelled members will no longer be suitable to act as agents or representatives of the EFF. Their disqualification from being MPs is an automatic consequence of their expulsion. The CCT will therefore have to pronounce itself specifically on this issue, for the sake of certainty. In doing so, the following pronouncement of the Constitutional Court must be borne in mind:
"Members elected on party lists are subject to party discipline and are liable to be expelled from their party for breaches of discipline. If that happens, they cease to be members of the Legislature."
(See United Democratic Movement v President of the Republic of South Africa 2003 (1} SA 495 (CC} at para 71}
183. Under normal circumstances, this outcome would be a subject of a possible appeal. However, and given the attitude of the charged members that they do not recognise the structures of the EFF, including its disciplinary structures, it is unlikely that any appeal(s) will be lodged. In the unlikely event that such an appeal may be lodged, possibly for tactical reasons or for maintaining the MP salaries unlawfully, the EFF will have legal remedies which we do not need to speculatively discuss at this stage.
184. The decision may accordingly be implemented with immediate effect after its confirmation or otherwise by the CCT.
185. Finally, it must be stipulated that no members of the NOC shall take part in the confirmation process of this verdict and all members of the NOC shall recuse themselves.
186. Although 4 (four) of the 5 (five) members of the NOC sat at the hearing held on 4 March 2015 at the Midrand Protea Hotel, the fourth member, Dr Suzan Tembekwayo, became unavailable for the second sitting held on 24 March 2015 and sent her apology, which was accepted. The three remaining members formed a quorum in terms of clause C.7 of the Code of Revolutionary practice, which provides that:
"The composition of the NDC shall be five members with a quorum of three."
187. Accordingly, it was decided that Dr Tembekwayo would no longer play any part in the further conduct of the matter, including deliberations on conviction and sentence.
188. For that reason, this unanimous finding is signed only for the three NDC members who participated in the entire proceedings, namely Shirley Mokgotho, Mlungisi Rapolile and the Chairperson of the NOC.
Dali Mpofu SC Chair of the NOC
Date: 8 April 2015
The above findings and sentences of the NOC have been CONFIRMED / NOT BEEN CONFIRMED by the CCT at its sitting on (date) 11 April 2015
NATIONAL DISCIPLINARY COMMITTEE 11APRIL 2015
SCHEDULE: SUMMARY OF FINDINGS
(A)ALL FOUR CHARGED MEMBERS HAVE BEEN FOUND GUILTY OF:
1. Missing their parliamentary duties without apology and/or permission on the 12 February 2015 (SONA) AND/ or 17 February 2015.
2. Convening, attending and addressing an unauthorized media conference on the
17 February 2015 in Sandton, Johannesburg at which various false, unsubstantiated allegations were made about the EFF itself and its leadership.
(B) Three of the Four (i.e. excluding Ramakatsa) have been found Guilty of:
1 Convening and attending an unauthorized media conference in Cape Town on the 12 February 2015.
(C) Three of the Four (i.e. excluding Lucky Twala) have been found Guilty of:
2. Convening, attending and addressing an unauthorized and specifically prohibited rally on the 21 February 2015 in Bloemfontein.
D IN ADDITION, THE FOLLOWING FINDINGS HAVIE BEEN MADE IN RESPECT OF INDIVIDUAL CHARGED MEMBERS
(D 1.) RAMAKATSA
1. Attending and addressing a meeting of the counter-revolutionary organization held in Durban on 31 July 2015 (GUILTY).
2. Malicious statements made to the Citizen newspapers, Lesedi FM and Power FM (NOT GUi TY}
(D 2.) ANDILE MNGXITHAMA
1. Failure to Chair Land and Agrarian Revolution Commission at the NPA without apology, on 15 December 2015 (NOT GUi TY)
2. Malicious statements made in social networks (NOT GUILTY)
3. Inciting and pressuring a staff member to steal EFF property (and giving it to members of the rival/competing opposition party)
4. Receiving stolen property of the EFF knowing it to be stolen
(D 3.) KHANYISILE LITCHFIELD-TSHABALALA
No additional charges
(D 4.) LUCKY TWALA
1. Participating in violent political activities without a valid justification such as self defence, provocation, etc by pointing a firearm (NOT GUILTY)
PAUL RAMAKATSA: EXPELLED,WITH IMMEDIATE EFFECT
ANDILE MNGXITAMA: EXPELLED, WITH IMMEDIATE EFFECT
KHANYISILE LITCHFIELD TSHABALALA: EXPELLED WITH IMMIDIATE EFFECT
LUCKY TWALA: SUSPENDED FOR 3 YEARS, SENTENCE CONDITIONALY SUSPENDED FOR 1 YEAR
Issued by the Economic Freedom Fighters, April 11 2015. Transcribed from PDF.