African National Congress

National Disciplinary Committee (NDC)

OFFICE OF THE CHAIRPERSON: CDE RALPH MGIJIMA

IN THE NATIONAL DISCIPLINARY COMMITTEE HELD ON THE VIRTUAL PLATFORM ON 4 DECEMBER 2022

Case Number 2/2021

the matter between:-

AFRICAN NATIONAL CONGRESS - Complainant

and

CARL NIEHAUS- Charged Member

NDC FINDING

BACKGROUND

1. Comrade Carl Niehaus was charged with 6 (six) counts of misconduct for contravening Rule 25 of the ANC Constitution.

2. The ANC alleged that he made utterances during June and July 2021, detailed below, which contravened various sub-rules of Rule 25 and brought the ANC into disrepute.

REPRESENTATION OF THE PARTIES

3. The ANC was represented by its Chief National Presenter, comrade Uriel Abrahamse, who was supported by national presenters, comrades Amanda Vilakazi and Mohammed Bhabha.

4. The charged member was represented by comrade Mathews Phosa.

DETAILS OF CHARGES

5. On Count 1 the ANC alleged that the charged member contravened Rule

25.17.5 read with Rule 25.17.3 of the ANC Constitution in that on or about 2 July 2021 and at or near the home of former President Jacob Zuma, at Nkandla, Kwa Zulu Natal, he organized, alternatively participated in a briefing to the media, which was broadcast live on national television and uttered word to the effect, inter alia,

“This is the most tragic week in the history of South Africa when President Zuma is humiliated once again. The ruling of the Constitutional Court is a travesty of justice. For 22 years President Zuma was pursued by the enemies of the people. President Zuma’s legal problems was caused by political factionalism and by shenanigans between state authorities especially the National Prosecuting Authority and some politicians within the ANC.

The arms deal case was manipulated by the National Prosecuting Authority in conjunction with politicians who want to destroy President Zuma’s political career.

The flimsy report of the State Capture report of the Public Protector was used to force President Zuma to eventually announce the State Capture Commission. President Zuma did not want to do so of his own volition. The then Public Protector, advocate Thuli Madonsela, said on national television President Zuma.

The law is being used selectively as an instrument to fight political and factional battles.”

6. The ANC alleged that the utterance was devoid of any truth and patently false and that the charged member deliberately put such false information into the public domain to cause confusion and disunity in the ANC. It brought the ANC into disrepute.

7. On Count 2 the ANC alleged that the charged member contravened Rule 25.17.5 read with Rule 25.17.3 of the ANC Constitution in that on 4 July 2021 and at or near the home of former President Zuma at Nkandla, Kwa Zulu Natal, he uttered the following words on national television, “No one can let Msholozi go to jail, never”

8. The ANC alleged that this utterance was made after the Constitutional Court found comrade Zuma guilty of contempt of court on 29 June 2021 and sentenced him to an unsuspended term of imprisonment of 15 months and the utterance was made with full knowledge and in defiance of the NEC position i.e. that the ANC as a political organization must maintain and respect the separation between party and state and consequently could not interfere with the judicial arm of the state and the rule of law. It brought the ANC into disrepute.

9. On Count 3 the charged member is alleged to have contravened Rule

25.17.5 of the ANC Constitution in that on 29 June 2021 and in an interview with the SABC which was broadcast live on national television uttered word to the effect that “the whole Zondo Commission was set up to target President Zuma. Our courts have clearly been captured. We are living in a dictatorship of the judiciary and the courts have become a tool for factional political battles to target certain politicians while other are let off the hook.”

10. The ANC alleged that the said utterance was made recklessly and without reference to the ANC position on the Commission on State Capture viz. the ANC reaffirms its support for the work of the Commission and its role in determining the nature and extent of state capture, and of holding those responsible to account. While the ANC has come under great scrutiny at the Commission, the NEC believes that this is a necessary part of the national effort to end state capture in all its forms and ensure that it can never happen again. The utterance brought the ANC into disrepute.

11. On Count 4 the ANC alleged that the charged member contravened Rule 25.17.5 of the ANC Constitution for bringing the ANC into disrepute when he uttered words to the effect that he and others will form a human chain and prevent the arrest of the former President and subsequent committal to a correction service facility especially after the charged member acknowledged that he was suspended a few hours earlier. The ANC alleged it brought the organization into disrepute.

12. On Count 5 the ANC alleged that on or about 8 July 2021 and outside the Estcourt Correctional Facility, where former President Zuma was committed to service his sentence and whilst he was on temporary suspension, he uttered the following words to a SABC journalist which was broadcast live on national television, “an injustice was perpetrated on President Zuma. The law was being weaponized as an instrument of factional politics.”

13. The ANC alleged that the import of the utterance was that the South African judiciary is not independent and that the judicial arm performs its responsibilities in accordance with the dictates of ANC politicians and that his conduct was in conflict with ANC resolutions in which the NEC publicly expressed its unequivocal support for the rule of law, the judiciary and the judgment of the Constitutional Court issued on 29 June 2021. It brought the ANC into disrepute.

14. On Count 6 the ANC alleged that the charged member contravened Rule

25.17.5 of the ANC Constitution in that on or about 9 July 2021 he uttered words to the effect that, “good morning fellow comrades and all South Africans who are outraged by the continuing, unjust and vindictive imprisonment of Jacob Zuma. It is a disgrace for the ANC to imprison Jacob Zuma and we should not allow ourselves to be silenced.”

15. The ANC alleged that the innuendo of the utterance was to exhort all South Africans to be outraged and to regard the conduct of the ANC to be disgraceful when the NEC adopted a position that the judgment of the Constitutional Court handed down on 29 June 2021 must be respected. It brought the ANC into disrepute.

PRE-HEARING CONFERENCE

16. At the request of acting NDC Chairperson, comrade Nocawe Mafu, the parties held a pre-hearing conference on 26 November 2021 with the purpose of streamlining and possibly curtailing proceedings.

17. The charged member admitted that he made the statements and utterances set out in the six charges on the express authority of the MK Military Veterans Association (MKMVA) for which organization he was a national executive member and the spokesperson.

18. In short, he raised a special defence of obedience to order.

19. It was also agreed at the pre-hearing conference that the ANC will be entitled to submit documentary evidence and video material od the statements and utterances without the necessity to call any witness to prove the authenticity of such documents, video or photographs submitted in evidence.

CASE FOR THE ANC

20. On 5 November 2022 the ANC called comrade Fikile Mbalula as a witness. However, due to problems experienced on the virtual platform, comrade Mbalula did not advance very far in his evidence and the hearing had to be postponed.

21. The NDC decided that, to obviate the problem, a physical hearing should be held on 26 November at ANC Headquarters, Luthuli House, in Johannesburg.

22. However, comrade Mbalula tendered an apology a day before the hearing because he was engaged with the President in the Letsima Campaign in the North-West Province and could not attend the hearing.

23. The NDC decided that the ANC should obtain comrade Mbalula’s evidence in documentary form and submit it to the NDC and the charged member’s representative within 5 days and the case was postponed to 3 December.

24. The case was postponed again to 4 December 2022 after the charged member informed the NDC that he had to attend a funeral on 3 December.

25. On 4 December the ANC submitted in evidence an unsigned affidavit of comrade Mbalula and informed the NDC that despite its best efforts, it could not have the affidavit attested.

26. Thereafter the ANC closed its case.

CASE FOR THE CHARGED MEMBER

27. The charged member called comrade Des van Rooyen as a witness and a summary of his evidence is as follows:-

27.1 He is the Treasurer General of the MKMVA and its National Working Committee;

27.2 He confirmed that the charged member was the spokesperson of MKMVA.

27.3 He was aware that the charged member addressed members of ANC and MKMVA at Nkandla on 2 July 2021;

27.4 The situation was volatile and the charged member was tasked to diffuse the situation and bring calm;

27.5 The charged member was expressly authorized in writing by MKMVA President, the late comrade Kebby Maphatsoe, to do so.

27.6 The MKMVA commended the charged member in writing for the manner in which he conducted himself;

27.7 The MKMVA was autonomous.

28. Under cross-examination, comrade Des said that MKMVA was not a constituent structure of the ANC but was independent.

29. He also referred to the minority judgment of the Constitutional Court in the case of comrade Zuma’s contempt proceedings and testified that there was division in the ANC on the Constitutional Court judgment, which saw comrade Zuma being imprisoned.

30. He said the authority given to the charged member by MKMVA was for events on 2 July 2022 and he had to confine himself to what was said on that day.

31. On re-examination, comrade Des said he could not recall what was said by the charged member on other occasions.

32. He said that many ANC leaders including comrades Lindiwe Sisulu and Fikile Mbalula called for a review of the Constitutional Court judgment.

33. The charged member did not testify and closed his case.

APPLICATION FOR DISCHARGE

34. The charged member’s representative applied for the discharge of the charged member primarily on the grounds that no evidence was led by the ANC to sustain a conviction.

35. The charged member’s representative also submitted that the evidence of comrade Des van Rooyen supported the charged member’s defence that he was acting on the instruction and authority of the MKMVA when he made the utterances.

36. The charged member’s representative also informed the NDC that the charged member was being prejudiced because he did not have an opportunity to cross-examine comrade Mbalula.

37. The ANC opposed the application for discharge on the grounds that the charged member admitted the utterances and that he was being charged as a member of the ANC and not the MKMVA.

38. The ANC also argued that the charged member was aware of the ANC’s position on the judiciary as articulated at the 54th National Conference and made reference to pages 15 to 19 of the bundle of documents which set out the ANC’s position.

39. The ANC also argued that the charged member disrespected the rule of law and did not respond to a number of allegations mentioned in the charge sheet.

40. In essence, the ANC argued that the charged member did not put his version to the NDC.

41. The NDC adjourned for a short while to consider the arguments and application for discharge.

42. When the hearing resumed the NDC refused the application for discharge and invited the charged member to lead his evidence.

43. The charged member elected not to testify and closed his case.

ARGUMENT - ANC

44. The ANC argued that the charged member was a senior member in the ANC and was well aware of what was required of him.

45. His utterances could be interpreted by the public that the ANC does not respect the rule of law.

46. The charged member contravened Rule 25.17.5 of the ANC Constitution, which provided it would be an act of misconduct for bringing the ANC into disrepute, and the acts of misconduct were of a very serious nature.

47. The charged member should be found guilty on all counts and suspended for 5 (five) years.

ARGUMENT - CHARGED MEMBER

48. The charged member chose to give evidence in mitigation of

sanction and chose to make a submission and not testify under oath or affirmation.

49. The charged member said he did not believe he had a case to answer.

50. He had dedicated his life to the Liberation Struggle and joined the Struggle when he was 19 years old.

51. He has served the ANC in many capacities and had given 43 years of uninterrupted service to the ANC.

52. He said the hearing was unnecessary because his utterances were a response to a gross injustice and violation of the ANC Constitution.

53. The charged member’s representative, comrade Mathews Phosa, submitted that in the event that the NDC makes a finding of guilty, an appropriate sanction would be a public reprimand.

EVALUATION BY NDC

54. The NDC chairperson thanked the parties for their submissions and said that the NDC would communicate its decision to the parties in due course.

Evidence of comrade Fikile Mbalula

55. The NDC agrees with the charged member’s representative that the fact that he was not able to cross examine comrade Mbabula after he testified at a previous hearing was prejudicial to the charged member.

56. For that reason the NDC decided that no probative value will be attached to the evidence given by comrade Mbalula.

57. The NDC is of the view that the unsigned affidavit deposed to by comrade Mbalula which was not in compliance with the Justice of the Peace and Commissioner of Oaths Act and should not be admitted as evidence.

58. The NDC wishes to express its displeasure at the manner in which comrade Mbalula, a senior leader, treated his responsibility as a witness. On one occasion he tendered an apology at short notice which necessitated a postponement of the hearing. On another occasion he was not contactable after he gave an assurance he would attend the hearing. On a third occasion he decided to accompany the ANC President on a campaign in the Free State after the date of hearing was arranged after taking into account his availability.

Admissions made by charged member

59. At the pre-hearing conference on 26 November 2021, the charged member admitted to making all the utterances referred to in the 6 charges.

60. In the view of the NDC, the admissions made constitute sufficient proof of those facts.

61. The charged member did not offer an explanation for his utterances after he tendered a plea of not guilty on all six charges and did not testify in his defence.

62. In the circumstances, the NDC has no other version before it by the charged member.

63. Consequently, the NDC finds that the ANC is entitled to rely on the facts admitted and is relieved of the burden to formally prove these facts at the hearing.

64. Consequently, the admissions made by the charged member are admitted as evidence and could be used against him.

Charged member’s argument that he was executing an order of the MKMVA, as its national spokesperson, when he made the utterances

65. The charged member was alleged to have committed acts of misconduct between 29 June and 8 July 2021.

66. At the pre-hearing conference, the charged member articulated his defence that the utterances were made on behalf of the MKMVA and expressly on the instruction of its Chairperson, the late Kebby Maphatsoe.

67. The instruction to the charged member was confirmed in a letter from the President of MKMVA to the National Disciplinary Committee of Appeal dated 12 July 2021 at a time when the charged member applied to set aside his temporary suspension.

See pages 45 to 48 of bundle

68. The letter refers to the period between 2 and 4 July 2021, purportedly being the period during which the charged member made statements in order to calm the situation outside the home of former President Zuma at Nkandla.

69. Comrade Des van Rooyen testified that the MKMVA instruction was given to the charged member to bring a volatile situation under control on 2 July 2021.

70. On two occasions under cross-examination, comrade van Rooyen said he was not aware of the other charges against the charged member. He specifically referred to events on 2 July when the charged member was directed by MKMVA to bring calm to a volatile situation at Nkandla.

71. The ANC presenter argued that the charged member was charged as a member of the ANC. Consequently, any authority given to him by another organisation would not constitute a defence.

72. MKMVA is not a constituent structure in the ANC Constitution. It is an independent organization but, by virtue of the role of MK military soldiers in the Struggle, MKMVA is closely allied to the ANC and is financially supported by the ANC.

73. Moreover, all members of the MKMVA are members of the ANC and consequently bound by the code of conduct of the ANC.

74. The defence of obedience to order or authority is generally used in war situations when a soldier could escape liability if he was acting on a legitimate and lawful order or instruction given to him by his superior. If he failed to obey, he ran the risk of being sanctioned for refusing to obey an order.

75. In peacetime the rules are very different. Members of the MKMVA, who are also members of the ANC, are bound by the code of conduct in the ANC Constitution.

76. The MKMVA, as a fraternal organization linked to the ANC is bound by the policies and resolutions of the ANC.

77. Any instruction given by the MKMVA which exceeded the bounds of the ANC’s code of conduct and went beyond the acceptable norms of freedom of speech as articulated in the ANC Constitution and the test of reasonableness could not be considered a legitimate, lawful and reasonable instruction.

78. In the circumstances, the charged member was under no obligation to execute the directive of the MKMVA. It was unlawful and unreasonable and he could have refused to execute it without fear of reprisals.

79. The NDC finds that the charged member’s argument that he was executing a directive of the MKMVA, albeit that the instruction did not extend to all utterances and actions between 29 June and 8 July 2021, fails and does not absolve him from liability.

Charged member’s argument that the ANC does not have a policy on the judiciary

80. The NDC does not understand the import of this argument.

81. The judiciary is regarded as a pillar of democratic South Africa and lauded by the governing party and the government as an agent of transformation in the quest to build a strong and capable state.

82. From time to time the ANC National Conference and the NEC make pronouncements on the judiciary, in general and specific terms.

83. For example, the National Conference in 2017 resolved on six specific issues pertaining to justice.

See page 19 of bundle

84. The NEC in 2018 supported the establishment of the State Capture Commission under the chairpersonship of Deputy Chief Justice Zondo (as he then was) and called on all ANC members to give full co-operation to the Commission and respect its recommendations.

85. On 29 June 2021 ANC national spokesperson, comrade Pule Mabe, reiterated the ANC’s position on the Constitutional Court judgment when he said that although the party was going through a difficult period, the party “reaffirmed its commitment to upholding the rule of law and fulfilling the aspirations of our constitutional democracy”.

See pages 20 and 21 of bundle

86. The NDC has taken judicial notice of the fact that the ANC position was vindicated when President Ramaphosa informed Parliament in October 2022 that the ANC accepted the recommendations of the State Capture Commission and put forward a proposal of the steps that parliament will take to end state capture.

87. These critical interventions are manifestations of a policy position of an organization that supports the rule of law and the institutions of justice.

88. The NDC also notes that the recommendations of the State Capture commission and related events, which led to the committal of former President Zuma to prison, find expression in the charges preferred against the charged member.

89. Consequently, the charged member’s argument that the ANC does not have a policy on the judiciary is without foundation and dismissed.

Count 1

90. The NDC is of the view that the utterances of the charged member constitutes a broad sweeping attack which was inflammatory in nature and were made at a volatile time.

91. The charged member has not provided any explanation or justification for making the utterances.

92. The NDC finds that the utterances go beyond the boundaries of freedom of speech and free circulation of ideas permitted in the ANC and expressly articulated in Rule 3.7 of its constitution and brought the ANC into disrepute.

93. The NDC finds that the causal connection between the elements of the charge and the act of misconduct of bringing the ANC into disrepute contemplated in Rule 25.17.5 of the ANC Constitution has been established and the ANC has discharged the onus of proving the guilt of the charged member on a balance of probabilities.

94. The charged member is accordingly found guilty on Count 1.

95. It follows that once a finding is made on the main count, the alternative charges to Count 1 fall away.

Count 2

96. The witness for the charged member, comrade Des van Rooyen, testified that it was not the position of the MKMVA to prevent comrade Zuma from going to jail.

97. The NDC agrees with the ANC presenter that the utterance was in defiance of the position of the ANC’s National Executive Committee that the ANC as a political organization must maintain and respect the separation between party and state and consequently could not interfere with the judicial arm and the rule of law.

98. The NDC finds that the utterances go beyond the boundaries of freedom of speech and free circulation of ideas permitted in the ANC and expressly articulated in Rule 3.7 of its constitution and brought the ANC into disrepute.

99. The NDC finds that the causal connection between the elements of the charge and the act of misconduct of bringing the ANC into disrepute contemplated in Rule 25.17.5 of the ANC Constitution has been established and the ANC has discharged the onus of proving the guilt of the charged member on a balance of probabilities.

100. The charged member is accordingly found guilty on Count 2.

Count 3

101. The NDC finds that the utterances made by the charged member are reckless and the charged member has not offered any explanation or justification for making them.

102. Furthermore, the utterances are in defiance of the NEC resolution that the ANC supports the work of the Zondo Commission and its role in determining the nature and extent of state capture and holding those responsible to account.

103. The NDC finds that the utterances go beyond the boundaries of freedom of speech and free circulation of ideas permitted in the ANC and expressly articulated in Rule 3.7 of its constitution. They were false, reckless, not made with the intention to save lives and brought the ANC into disrepute.

104. The NDC finds that the causal connection between the elements of the charge and the act of misconduct of bringing the ANC into disrepute contemplated in Rule 25.17.5 of the ANC Constitution has been established and the ANC has discharged the onus of proving the guilt of the charged member on a balance of probabilities.

105. The charged member is accordingly found guilty on Count 3.

106. It follows that once a finding is made on the main count, the alternative charge to Count 3 falls away.

Count 4

107. The witness for the charged member, comrade Des van Rooyen, testified that it was not the position of the MKMVA to prevent comrade Zuma from going to jail.

108. Consequently, the formation of a human chain to prevent the committal of comrade Zuma to be taken to a correctional facility was in defiance of the MKMVA’s position and the ANC’s position on upholding the rule of law.

109. The NDC finds that the utterances go beyond the boundaries of freedom of speech and free circulation of ideas permitted in the ANC and expressly articulated in Rule 3.7 of its constitution and brought the ANC into disrepute.

110. The NDC finds that the causal connection between the elements of the charge and the act of misconduct of bringing the ANC into disrepute contemplated in Rule 25.17.5 of the ANC Constitution has been established and the ANC has discharged the onus of proving the guilt of the charged member on a balance of probabilities.

111. The charged member is accordingly found guilty on Count 4.

Count 5

112. The witness for the charged member, comrade Des van Rooyen, testified that it was not the position of the MKMVA to prevent comrade Zuma from going to jail.

113. The NDC finds that charged member’s utterances and conduct outside the Estcourt Correctional Facility were in defiance of an ANC resolution in which the NEC publicly expressed its unequivocal support for the rule of law, the judiciary and the judgment of the Constitutional Court handed down on 29 June 2021.

114. The NDC finds that the utterances go beyond the boundaries of freedom of speech and free circulation of ideas permitted in the ANC and expressly articulated in Rule 3.7 of its constitution and brought the ANC into disrepute.

115. The NDC finds that the causal connection between the elements of the charge and the act of misconduct of bringing the ANC into disrepute contemplated in Rule 25.17.5 of the ANC Constitution has been established and the ANC has discharged the onus of proving the guilt of the charged member on a balance of probabilities.

116. The charged member is accordingly found guilty on Count 5.

Count 6

117. The NDC finds that these utterances contradict the ANC position as expressed by the NEC viz. that the ANC supports the rule of law and the judiciary.

118. The charged member’s utterance that the ANC’s conduct was disgraceful was made recklessly and there was no basis for making it.

119. The NDC finds that the utterances go beyond the boundaries of freedom of speech and free circulation of ideas permitted in the ANC and expressly articulated in Rule 3.7 of its constitution and brought the ANC into disrepute.

120. The NDC finds that the causal connection between the elements of the charge and the act of misconduct of bringing the ANC into disrepute contemplated in Rule 25.17.5 of the ANC Constitution has been established and the ANC has discharged the onus of proving the guilt of the charged member on a balance of probabilities.

121. The charged member is accordingly found guilty on Count 6.

SANCTION

122. The NDC is of the view that the charges for which the charged member has been found guilty are very serious.

123. As such, the charged member’s plea that he be sanctioned with a reprimand, if found guilty, is wholly inappropriate.

124. The utterances of the charged member were made at a time when the circumstances surrounding the arrest and subsequent committal to prison of former President Zuma was very volatile as evidenced by the subsequent riots which took place in Kwa Zulu Natal and parts of Gauteng and resultant loss of life and limb and damage to and loss of property.

125. The NDC took into consideration the mitigating factors placed before it by the charged member.

126. The charged member showed no remorse and persisted with his view that the ANC was acting in violation of its constitution and his rights by disciplining him.

127. The NDC took into consideration the fact that the charged member is a senior and long-standing member of the ANC, had served a term of imprisonment for his political beliefs and held strong and sometimes contrary views on the policies of the ANC and positions adopted by the NEC from time to time.

128. The NDC finds that notwithstanding the charged member’s strong views, he, like all other members of the ANC, were bound by the code of conduct of the organization.

129. Whilst the ANC was very tolerant of differing views, it was the obligation of every member to abide by the stated policies and positions of the organisation as articulated by the NEC from time to time. No member was exempted or allowed to adopt a posture which defined him or her as being bigger than the organization.

130. The ANC presenter recommended a suspension of 5 years which suggested to the NDC that the presenter was of the view that the charged member could be rehabilitated and that during the period of suspension he would have sufficient time to reflect and change his behaviour and return to the organization as a person who would clearly understand the dividing line between freedom of speech and freedom to articulate ideas and views on the one hand and indiscipline on the other.

131. However, the failure of the charged member to show any remorse for his misconduct convinced the NDC that he was not capable of being rehabilitated.

132. The sanction imposed by the NDC was not taken easily, especially in light of the charged member’s history and the time he devoted to the Struggle as a member of the ANC.

133. However, the NDC is of the view that the interests and integrity of the organization warrant protection and that the interest of the individual member is subservient to the interests of the organization.

NDC FINDING

134. The charged member is expelled from the ANC.

Dated at Johannesburg this 12th day of December 2022

Cde Ralph Mgijima

NDC Chairperson

NDC member Karensa Millard – agreed NDC member Enver Surty – agreed