ANC Not Dropping Malema’s Charges

The ANC’s FULL Response:

The respondent, cde Julius Malema, instituted an application on 30 August 2011 for the quashing of all charges. He advanced 22 arguments in support of the application.

A. Purpose and function of the NDC

The NDC is concerned that both parties advanced complex legal arguments in terms of the Criminal Procedure Act, supported by case law, and the South African Constitution to justify whether or not the charges should be quashed. For this reason the NDC considers it necessary to re-state the purpose and function of the NDC to guide the proceedings going forward. They are:-

1. The ANC is a voluntary organisation with a constitution;
2. The ANC is a vibrant political movement which encourages constructive debate in an organised manner;
3.  The ANC seeks to regulate the conduct of its members through a code of conduct which is set out in Rule 25.5 of its constitution;
4.  All its members have subscribed to the constitution of the organisation, are bound by the ANC membership oath and the code of conduct;
5. The ANC has the right to discipline its members;
6.  A disciplinary hearing of the NDC is in terms of the organisation’s constitution and is no more than an ordinary internal disciplinary process instituted by the organisation against any of its members for allegedly breaching the code of conduct of the organisation;
7. The NDC obtains its powers from the ANC constitution and is authorised to conduct disciplinary proceedings;
8. The NDC is not a court of law but a quasi-judicial institution of the ANC. It has its own rules and operates on principles of equity and fairness; and
9.  In terms of its mandate, the NDC is limited to the adjudication of acts of misconduct allegedly committed by members of the organisation.

B. Interpretation of the organisation’s code of conduct

The code of conduct, in the context of the ANC constitution, encompasses actions and utterances of its members.

Save for Rule 25.5 (a) and (b), the code of conduct is, understandably, couched in very wide terms to accord with the nature of the organisation and its aims and objectives as set out in Rule 2 of its constitution.

In Rule 25.5 the ANC deems certain actions and utterances of its members to constitute misconduct.

The benchmark for determining whether a particular act or utterance of a member could constitute misconduct can be found in Rule 2 of the constitution.

C. Respondent’s arguments for quashing of charges For the purpose of determining the respondent’s application, the NDC took into consideration the following legal arguments that were advanced in support of the application to quash all charges:-

1. the rules must be known to whom it applies;

2. the rules are unreasonable;

3. the rules cause confusion;

4. there is no rule which governs what members can say;

5. the charges were not instituted within a reasonable time;

6. none of the charges disclose a cause of action or disclose an offence;

7. the ANC constitution is unconstitutional;

8. the rules must be consistently applied;

9. Rule 25.1 (a) is not clear;

10. it was not clear which policy or which rule had been breached; and

11. the charges are not very clear;

D. Law applicable to a charge

The general rule in law, also applicable in this hearing, is that a charge must be set out with sufficiently particularity to enable a party to plead. This means that the complainant must set out the rule that was allegedly transgressed, the date when it occurred and the details of what was said or done by the respondent.

There is no obligation on a complainant to set out evidence in the allegations to a charge.

E. Onus on respondent in application for quashing of charges in an application to quash the charges, the respondent has the onus to persuade the NDC that upon every interpretation that can be brought to bear on the allegations in support of the charge, no offence can be disclosed.

Furthermore, it is trite law that the leading of evidence can cure any lack of a cause of action or non-disclosure of an offence in a charge.

F. Consideration of respondent’s legal arguments for the quashing of charges

F1. Respondent’s argument that he was not aware of the rules of the

organisation

The ANC constitution has a code of conduct which sets out a range of acts of misconduct in Rule 25.5 that binds all members.

If a member transgresses the code of conduct, the organisation has the right to discipline that member.

On joining the ANC, the respondent undertook to observe discipline as set out in Rule 5(2)(g) of the constitution.

The respondent is also bound by the oath as set out in Rule 4.15 to respect the constitution and defend the unity and integrity of the organisation and its principles and to combat any tendency towards disruption and factionalism.

As a leader and member of the NEC of the ANC in terms of Rule 12.3(e), the respondent was in the opportune position of having full knowledge and information of the policies of the ANC.

Against this background and with specific reference to the respondent, the NDC finds that the respondent was either aware of or ought to have been aware of the code of conduct in the ANC constitution governing misconduct.

Consequently, the argument that the respondent did not know the rules of the ANC constitution, particularly Rule 25.5 governing misconduct, cannot be sustained.

F2. Respondent’s arguments that the rules are unreasonable and cause confusion

The ANC is almost a hundred years old and, for most of this period, had a constitution with a code of conduct. The ANC has a large membership base throughout the Republic of South Africa.

Over the years there has been no outcry from its members that the code of conduct, as set in Rule 25.5 of the ANC constitution, is unreasonable or that it causes confusion.

The ANC constitution was properly adopted by its members at a National Conference.

For these reasons the NDC finds that the arguments that the rules are unreasonable and cause confusion are without merit.

F3. Respondent’s argument that there are no rules in the constitution governing what members can say

The code of conduct in the ANC constitution encompasses both actions and utterances.

For this reason the NDC finds that the argument is ill-founded.

F4. Respondent’s argument that the charges were not instituted within a reasonable time

The NDC accepts that charges for misconduct must be instituted against a member within a reasonable time. The question, however, is how does one determine what is reasonable.

In the present case the charges were instituted against the respondent on 19 August 2011 for acts of misconduct allegedly committed and utterances allegedly made between 9 May and 31 July 2011.

In terms of the ANC constitution, disciplinary action for misconduct is not automatic. Rule 25.3 makes provision for an inquiry to be conducted before the relevant body in the ANC is satisfied that disciplinary proceedings are warranted.

In the case of branches, the authority of the Provincial Working Committee (PWC) in terms of Rule 25.6(d) has to be first obtained before disciplinary proceedings can be instituted.

Being a large organisation that the ANC is, these procedures, whether conducting an inquiry or obtaining the authority of the PWC, can be time-consuming.

Consequently, by virtue of these procedural requirements in the constitution and having regard to the size of the ANC, it would not be unreasonable for disciplinary proceedings to be instituted within a few months after the alleged commission of the act of misconduct.

F5. Respondent’s argument that none of the charges disclose a cause of action or disclose an offence

After consideration, the NDC is satisfied that in the present case the charges set out, in each instance, the particular rule that has been contravened, the dates and places and the circumstances under which the acts were allegedly committed and utterances allegedly made by the respondent.

As stated above, there is no obligation on the complainant to set out evidence in the allegations to a charge to constitute a valid charge. Moreover, the disclosure of an offence can be established through evidence.

The NDC finds that by stating precisely the rule that was contravened and providing details of the act done or utterances made by the respondent, the charges, in each case, disclose an offence.

Whether the complainant will ultimately be able to prove the charges against the respondent is an entirely different matter. Such a determination can only be made in the closing argument stage of the hearing and after evaluating all the evidence.

F6. Respondent’s argument that the ANC’s constitution is unconstitutional

Respondent’s argument that the constitution of the ANC, a voluntary organisation, is unconstitutional and in conflict with the Constitution of the Republic of South Africa is disingenuous.

F7. Respondent’s argument that the rules must be consistently applied In terms of Rule 25.6 (a) of the organisation’s constitution, the NDC acts on referrals. The NDC finds that inconsistent application of the rules does not constitute a ground for the quashing of charges.

F8. Respondent’s arguments that rule 25.1 (a) of the ANC constitution is not clear; that it is not clear which policy or which rule has been

breached and that the charges are not very clear After consideration of the arguments, the NDC rules as follows:

8.1 The NDC is satisfied that Rule 25.1 (a) is clear in its intent for purposes of discipline. The expectation in this rule, as set out in the rule itself, is that members, in addition to the provisions of the ANC constitution, must also have knowledge of the rules, regulations, standing orders and

code of conduct, as adopted and amended from time to time, as well as all policies and decisions properly adopted or made in terms of the

Constitution.

8.2 The charge sheet sets out with clarity which rule has been breached and the charges refer to specific sections in Rule 25.5 to inform the

respondent of the act of misconduct complained of.

8.3 As stated above, the charges in the charge sheet are valid.

G. Further arguments raised by the Respondent The respondent also advanced the following arguments to support his application to quash the charges:

1. that the charges are politically motivated;

2. that the ANC Youth League is an autonomous organisation;

3. that the charges are a disguise for paralysing and making it difficult for the ANC Youth League to express itself;

4. that this disciplinary hearing is more like shooting the messenger to silence the ANC Youth League;

5. that cde Julius Malema was acting in a representative capacity in the course and scope of his official capacity as President of the ANC Youth League;

6. that the role of the ANC Youth League is to be a critical voice;

7. that political issues require political solutions;

8. that any attempt to silence the ANC Youth League is a subversion of the Constitution of the Republic of South Africa;

9. that cde Julius Malema only expressed an opinion about the situation in the sovereign state of Botswana;

10. that the disciplinary hearing against cde Julius Malema is designed to stifle debate and solve private problems; and

11. that the real motive behind the charges is to stifle the debate on nationalisation, referred to in the argument as ‘the elephant in the room.’

With respect to the above arguments, the findings of the NDC are as follows:-

• These arguments do not constitute grounds for quashing the charges;
• The NDC is established to adjudicate matters pertaining to acts of misconduct and violations of the Constitution allegedly committed by members. It is not authorised in terms of its mandate in the ANC constitution to adjudicate on political, policy and organisational matters;
• Cde Malema was charged in his capacity as a member of the ANC and this matter is being dealt with on that basis; and
• The charges against cde Malema relate to acts of misconduct and violations of the Constitution as set out in Rule 25.2 of the ANC Constitution.

H. Ruling on application

In respect of the 22 arguments advanced by the respondent and for the reasons set out above, the NDC rules that the respondent’s application to quash all the charges is dismissed.

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TJO! Isukile!

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