AFRICAN NATIONAL CONGRESS NATIONAL DISCIPLINARY COMMITTEE
Case No: /2011
In the matter of:
AFRICAN NATIONAL CONGRESS NATIONAL OFFICIALS - Complainant
and
JULIUS MALEMA - Respondent
FINDING
On 30 August 2011 the respondent instituted an application for the recusal of 3 (three) members of the NDC. This was followed by a second application to quash all the charges. The NDC dismissed both applications.
Thereafter the disciplinary hearing resumed on 15 September 2011 and continued by agreement during specified days in September and October. Argument was heard on 6 November 2011.
A. Agreement on evidence and argument
1. The evidence in the case of comrade Shivambu would also be applicable to the case of comrade Malema and vice versa, insofar as it was relevant, to avoid calling the same witnesses to testify in both cases.
2. Argument in the cases of comrades Shivambu and Malema would be dealt with in one session since there were cross-cutting issues which were relevant to both cases.
B. The Charges
The respondent, comrade Julius Malema, was charged with five counts of misconduct. For sake of convenience, one charge was consolidated with the same charge faced by four other charged members and that hearing took place on 2 September 2011.
C. Preliminary Points
At the commencement of the hearing, the respondent raised the following preliminary points:-
1. That the NDC could not hear Charge 2 because it was a party mentioned in the charge, and, accordingly, could possibly be conflicted.
2. That the chairperson of the NDC should recuse himself in relation to Charge 5 on the basis that he had previously expressed himself on matters relating to land expropriation and could therefore be conflicted.
C1. Ruling on Charge 2
1. In the application to quash charges, the respondent indicated that this matter could be raised if that application was not successful, and thus it arose at this point in the proceedings.
2. After due consideration, the NDC ruled as follows:
2.1 The NDC's prima facie view is that there is no conflict that precludes it from hearing this matter, merely because the NDC in mentioned in the Charge.
2.2 It may be possible that through evidence, a potential conflict could arise, in which event this application may become relevant at this stage.
2.3 To avoid this possibility, the NDC therefore ruled that this Charge be provisionally withdrawn.
3. The NDC ruled on the provisional withdrawal of Charge 2, rather than dropping this Charge, because the NDC believes the allegations contained in Charge 2 constitute a serious attack on the integrity of the NDC and on the ANC's organizational processes.
4. Given the seriousness of the allegation in Charge 2, the NDC is of the view that it should be dealt with, even by the NDC itself, albeit not as part of this case.
C2. Ruling on Charge 5 for recusal of the NDC Chairperson
1. After due consideration, the NDC ruled that this matter was raised in the initial application for recusal of three members of the NDC and that decision still stands.
D. Amended charge sheet
After the ruling in C1 above, the following three charges remained against the respondent.
Charge 1
That you are guilty of contravening Rule 25.5(i) of the Constitution of the African National Congress by behaving is such a way as to provoke serious divisions or a breakdown of unity in the organization,
IN THAT:
When addressing a press conference at the conclusion of the ANC Youth League NEC meeting on 31 July 2011, you actively participated in making the following statement:
"In the past, we know that President Mbeki used to represent that agenda very well" and further that
"The African agenda is generally no longer a priority, and we think that there is a temptation by the colonizer and the imperialist to want to re-colonise Africa in a different but sophisticated way - and President Mbeki stood directly opposed to that type of conduct."
Charge 2
That you are guilty of contravening Rules 25.5(c) of the Constitution of the African National Congress by behaving in such a way as to bring the organization into disrepute:
IN THAT
1. On 31 July 2011 you addressed a press conference where, in the name of the National Executive Committee of the ANC Youth League, a structure which operates within the policy confines of the ANC, by making the following pronouncements:
(i) "Botswana's leadership of government poses a serious threat to Africa, so we need a progressive government in Botswana"; further
(ii) "We are not going to sit with neighbours that conduct themselves like that. Botswana is in full co-operation with imperialists... and the government is undermining the African agenda"; and further
(iii) "The ANCYL would establish a "Botswana Command Team" which will work towards uniting all opposition forces in Botswana to oppose the puppet regime of Botswana led by the Botswana Democratic Party."
These careless, negligent or reckless pronouncements and utterances were a deviation of established and ongoing ANC policy and had the effect of embarrassing and bringing the organization into disrepute within and beyond the borders of South Africa.
Charge 3
That you are guilty of contravening Rule 25.5 (d) of the Constitution of the African National Congress by sowing racism or political intolerance:
IN THAT
On or around 9 May 2011 you addressed a public rally in Galeshewe, where you made the following remarks,
(i) "They (Whites) have turned our land into game farms... The willing buyer, willing seller [system] has failed'' and
(ii) "We must take the land without paying .They took our land without paying. Once we agree they stole our land, we can agree they are criminals and must be treated as such."
Thereby acting contrary to ANC policy, as derived from the Freedom Charter and further developed in ANC policy documents, including "Ready To Govern," and the resolutions of the 50th, 51st and 52nd Conferences of the ANC.
ALTERNATIVELY
That you are guilty of contravening Rule 25.5 (c ) of the Constitution of the African National Congress, by behaving in such a way as to bring the organization into disrepute.
E. Plea
The respondent pleaded not guilty to the Charges and did not offer to disclose the basis of his defence.
F. Formal admissions
The respondent admitted that:-
1. he was a member of the ANC in good standing; and
2. he was aware of the ANC Constitution and Code of Conduct.
G. Bundle of documents
During the proceedings, the respondent handed in the following documents which were admitted as evidence by the NDC.
Annexure JM 1 - Media Comments
Annexure JM 2 - A life of its own: The autonomy of the ANC Youth League
Annexure JM 3 - Heed Julius on Botswana, Editorial, The Star, 3 August 2011
Annexure JM 4 - Opposition welcomes Malema's offer to topple BDP, Mmeg Online, 2 August 2011
Annexure JM 8 - Declaration of the 24th National Congress, ANC Youth League
Annexure JM 9 - Evidence of Professor Nkondo
Annexure JM 11 - ANC Youth League Induction Manual
Annexure JM 12 - Documents on International Law by Mtshaulana et al
Annexure JM 13 - Article titled, "Zuma slams Malema's supporters", Sunday Independent 10 October 2011
The complainant handed in the following documents and exhibit:
Annexure JM 5 - SADC Mutual Defence Pact
Annexure JM 6 - Freedom Charter
Annexure JM 7 - Declaration on the Inadmissibility of Intervention in Domestic Affairs of States and the Protection of their Independence and Sovereignty, General Assembly Resolution 2131, New York, 21 December 1965
Exhibit JM 10 - Audiovisual clip of press conference of NEC of Youth League held on 31 July 2011
H. Evidence for the complainant
The first witness who testified on behalf of the complainant was comrade Gwede Mantashe, Secretary General of the ANC (SG). A summary of his evidence is as follows:-
1. He said he was familiar with the contents of Annexure E1 which was the statement issued by the National Executive Committee of the ANC Youth League on 31 July 2011.
2. He read into the record the following extract from the statement:-
"On the international front, the ANC Youth League NEC expressed concern about the decline of regional and continental formations, SADC and the African Union, particularly since the departure of President Thabo Mbeki in the space of African leadership. The ANC YL is of the view that there is a vacuum on the ideological and political leadership of Africa and the sub-regions, and this is reflected by how the issues of Libya and Ivory Coast were mishandled. The ANC Youth League will soon convene progressive youth formations across SADC and ultimately Africa to re-assert the need for Africa's independence, sovereignty and economic freedom".
3. He denied that there was a decline in the activities of the SADC and AU since the departure of former President Mbeki and said that these two institutions are more active now because of the many things that have happened on the continent.
4. He disagreed with the statement of the ANC Youth League because in his understanding there was no decline in AU and SADC activity.
5. When asked whether it was true that there was a vacuum on the ideological and political front of African leadership the SG's response was that a vacuum means an empty space. This meant that no leadership was provided and the two examples that used were Libya and Ivory Coast.
He found it interesting that the Egyptian and Tunisian situations were not added. The SG disagreed with the statement.
6. The ANC received constant briefings on the situation in Libya and Ivory Coast and the ANC Youth League was represented in the NEC/NWC of the ANC during these briefings.
7. The SG said that if Resolution 1973 on Libya was regarded as ‘mishandling', it was a very simplistic interpretation of a very complex matter, particularly the issue of the no-fly zone. He said that the ANC supported the AU position.
8. The ANC responded to the ANC Youth League statement of 31 July on 1 August 2011 and informed the Youth League prior to its issue because the ANC thought it was important to inform the Youth League of its position before going public.
9. He said that the statement of the Youth League (E1) did not talk to the reality of the activities on the continent.
10. He said that the Youth League was using the name of comrade Thabo Mbeki in the statement to justify the accusation that a vacuum existed and was therefore using the name of comrade Thabo Mbeki actually to have a ‘dig' at the current leadership.
11. The ANC did not respond specifically to the issue of the African agenda but responded to the Youth League's statement on Botswana.
12. The SG read the following extract from the ANC's statement (annexure E2) dated 1 August 2011 in response to the Youth League statement:
"The African National Congress (ANC) would like to totally reject and publicly rebuke the ANC Youth League (ANCYL) on its extremely thoughtless and embarrassing pronouncements on "regime change" in Botswana and the so-called "veering off the African agenda by the African Union (AU) together with the Southern African Development Community (SADC)."
13. The purpose of the statement was to rebuke the Youth League and to inform it that its statement was a total deviation from and an affront to ANC policies.
14. The SG said that the ANC was clear in its policies on international relations on the continent and the region.
15. The SG said that ANC policies could be traced right back to Clause 10 of the Freedom Charter which states, inter alia, that South Africa shall be a fully independent state which respects the rights and sovereignty of all nations. He added that subsequent resolutions of the ANC were in line with Clause 10 of the Freedom Charter which was explicit about the region.
16. The SG was referred to paragraphs 35 to 38 of the ANC resolution on party-to-party relations (Annexure F9) which was adopted at the 52nd Conference of the ANC in Polokwane in 2007 and stated that it was the latest resolution of the ANC in that regard.
17. He said that the Youth League's action regarding Botswana was not consistent with this resolution and was a departure from the principle of non-interference.
18. The SG referred to Articles 7 and 8 of the SADC Defence Pact (Annexure JM 5) which provided that:-
"state parties undertake to respect one another's territorial integrity and sovereignty and in particular observe the principle of non-interference in the internal affairs of one another" and "state parties undertake not to nurture, harbour or support any person, group of persons or institutions whose aim it is to destabilize the political, military, territorial or economic or social security of a state party."
19. He said that every six months the ANC meets with the other liberation movements and once per annum a meeting is held with the former liberation movements. The Youth League statement ignored paragraph 38 of the ANC resolution on Party-to-Party relations which dealt with the basis for working with liberation movements which were not in power.
20. The ANC rebuked the ANC Youth League because the statement went beyond the internal disagreements in the ANC and in fact exported the disagreements to the region. It was going to pollute both party and diplomatic relations of the ANC.
21. He referred to the statement issued by the ANC on 1 August 2011 (paragraph 4 of Annexure E2) and read into the record the following excerpt:
"We want to remind the ANCYL leadership and its membership of Article F of the ANCYL constitution, which states that the ANCYL is a mass organ of the ANC that functions as an autonomous body within the overall structure of the ANC of which it is an integral part. The ANCYL's life and body politic is based on the political and ideological objectives of the ANC".
22. He said that the Youth League is autonomous and it can have policies and a constitution which must be within the parameters of ANC policy. He added that the Youth League can come to a policy conference of the ANC with a view which is not in line with ANC policy. That is regarded as a proposal and should go through the proper policy processes of the ANC. The position of the Youth League on Botswana is not ANC policy. It was actually a deviation.
23. The SG did not think that the Youth League accepted the ANC statement of 1 August 2011 issued by comrade Jackson Mthembu because it issued a response the next day (Annexure E3) which justified the Youth League's resolution on Botswana.
24. He said that it was a mistake to categorize the BDP with the MDC in Zimbabwe or the LCD in Lesotho or MMD in Zambia because they do not belong together. The Deputy President and other comrades attended the last conference of the BDP because the ANC thought that the BDP would go on for years. The SG could not recall any formal interaction with the MDC.
25. In terms of the resolution on Party-to-Party relations, the ANC should develop and strengthen relations with the BDP in Botswana.
26. When asked to comment on the Youth League statement about strange political and ideological trends as set out in Annexure E3, the SG's response was that he did not understand what it meant because the ANC interacted with various parties within the framework of ANC policies and it did that very consistently.
27. He issued a statement on 3 August 2011 (Annexure E5) because the ANC had a responsibility to clarify the position with regard to the ANC's policy on international relations once and for all and because the Youth League statement (Annexure E3) caused confusion.
28. The SG's comment on the utterances in Charge 1 was that they were a deviation from ANC policy.
29. In respect of Charge 2, the SG said that with regard to the impact of the resolution in the region, liberation movements would begin to doubt that the ANC was consistent. Consequently, the ANC's focus would change from maintaining relations to repairing relations.
30. With regard to Charge 3 he stated that the ANC resolved that the willing buyer-willing seller system had failed.
31. The NGC had resolved that land expropriation should be done with compensation. Therefore it was not correct for the respondent to say that "we must take the land without paying" because it was inconsistent with resolutions taken at the NGC.
32. The SG said that the main objective of the ANC was to build a non-racial society and that such a hostile posture would dent the ANC's stand on non-racialism.
33. He said that non-racialism is important to the ANC because the main objective of the ANC is to build a non-racial society.
34. He said that the reference to the word "dig" can be described by one word in the ANC Constitution - ‘division'.
35. The SG stated that one cannot argue against the desire of imperialists to re-colonise Africa. But when it is juxtaposed with a decline in the African agenda, that conclusion, in his view, was mischievous.
36. After being shown an audio visual clip of the respondent's utterances on Botswana (Exhibit JM 10), the SG said that the key words were "topple" and "plan to put somebody down." In his view these pronouncements have a negative impact on diplomatic and party and party relations and were not in line any policy of the ANC.
Under cross-examination
1. With regard to Charge 1, the SG's response on being taken through the respondent's utterance piecemeal was that the utterance should be viewed as a whole to understand its context. The SG agreed that President Mbeki stood directly opposed to that type of conduct but added that the respondent was not entitled to make that statement as a policy statement. The statement which was made by the respondent was false and the respondent was having a ‘dig' at or criticizing the present leadership.
2. When asked whether the respondent as a citizen had a right to think, the SG's response was that as a person the respondent had a right to think.
But as a leader the expression of a thought has its limitations because
"you are not allowed to express your thoughts unless you are sure that
they are correct'.
3. The SG agreed with the proposition that the ANC's objectives were anti-
imperialism and anti-capitalism and that, at an international level, its objective was still the national democratic revolution.
4. The SG also agreed with the proposition that the resolution that was taken on Africom at the ANC Conference in Polokwane was directed at Botswana and went on to say that Africom was not established in Botswana as a direct result of that ANC resolution and not through any direct public engagement with Botswana. He added that Africom would have created a foothold for the imperialists in the region.
5. When asked whether it would be problematic if the Youth League furthered ANC policy on anti-imperialism in Botswana, the SG responded that the Youth League was entitled to criticize anything that would allow imperialists to come back but the focus was on approach. He referred to a recent meeting of all progressive movements in Windhoek where a proposal from the youth wings that action should be taken against Botswana was rejected.
6. After being taken through the utterance of the respondent on the audiovisual clip (Exhibit JM 10), the SG agreed that the respondent spoke about a team and not a command team. He also said that if the Youth League had resolved to work with BNF youth there would have been no issue.
7. It was put to the SG whether the position would be any different if the Youth League believed that its resolution was within ANC policy. The SG's response was that one of the responsibilities of leadership was to read and analyse ANC policy and not to act from a position of ignorance of what it believed ANC policy to be. He added that if there was a policy, one cannot be led by belief.
8. The SG stated that the resolutions of the Youth League congress which was held in June 2011 were sent to him on 2 August 2011. He saw many deviations.
9. When asked whether he engaged with the Youth League on these deviations, the SG's response was that ‘we engage when we go to the processes that lead to the policy conference'.
10. When asked whether the Youth League had the right to announce its resolutions publicly after a congress, the SG's response was that it did but the announcement should be qualified to show it was a policy proposal that would be put to the ANC.
11. It was put to the SG that the respondent's utterances were based on the statement of the ANC Youth League and that the respondent was speaking on behalf of the Youth League collective. The SG's response was that leaders have a responsibility of using language carefully.
12. When asked whether comrade Thabo Mbeki was acting as an individual, the SG's response was that he was acting as the President of South Africa and it was very dangerous to go into that space where leaders are separated from the organisation.
13. The SG agreed with the proposition that comrade Thabo Mbeki represented the African agenda well.
14. It was put to the SG that the respondent would testify that he was acting in his representative capacity and that the Youth League had a principle of collective leadership in terms of which the collective and not any individual would be responsible for decisions of the collective. The SG disagreed and said that leaders have responsibilities and the first point of contact would be the person who issued the statement on behalf of the collective. It was for the issuer to explain that he or she was expressing a collective view and not his or her personal view. He added that whether the individual or the collective should accept liability is a function of a process.
15. When asked whether a member could act on ANC policies, his response was that a member cannot personalize ANC policies and commence with implementation.
16. When asked whether the Youth League could take a resolution on Botswana, the SG's response was that the Youth League should have read and analysed the balance of forces before taking the resolution.
17. When asked whether the publication of the resolution on Botswana was problematic, the SG's response was that there was a difference between public and private criticism and that Party-to-Party relations are criticized in private because of the negative impact of public criticism on the relationship between the parties.
18. It was put to the SG that a meeting of SGs of the youth wings of liberation movements had brought the issue of Botswana to the ANC Youth League Congress. The SG denied this and said that if that was the case, there was a duty on the Youth League to engage the mother body before taking any resolution.
19. When asked what the difference was between the Leagues of the ANC and the ANC alliance partners, the SG's response was that there was a big difference because the Leagues were part of the ANC whereas the allies such as COSATU and the SACP existed in their own right with their own programmes. They joined the ANC on specific issues.
20. When asked if the ANC Youth League could give material support to youth movements in other countries, the SG's response was that the ANC Youth League could do so even if the result was the toppling of that government because elections are about toppling governments through democratic means.
21. When asked whether the ANC was concerned about the militancy of the Youth League, the SG's response was that militancy was not a licence for recklessness.
22. When asked what was wrong with the Youth League's position on Botswana, the SG's response was that there were many deviations from ANC policy because it was the sovereign right of the people of Botswana to decide their own future.
23. When asked why the ANC had not acted when some South African organisations had taken a position against Swaziland, the SG's response was that there was a distinction between Swaziland and Botswana. He stated that the ANC resolution on party-to party relations entitled the ANC to co-operate with southern African countries to combat crime and illegal immigration even if the party in power was not regarded as a progressive party. He said that paragraph 42 of the ANC resolution was more applicable to the situation in Swaziland.
24. It was put to the SG that evidence would be led that the ANC Youth League's position on Botswana received widespread support. The SG's response was that he was not aware.
25. It was put to the SG that evidence would be led that the autonomy of the ANCYL was debated and resolved at a conference in 1991 when SAYCO and the ANC Youth Desk formed the ANCYL. The SG's response was that the ANC Youth League was part of the ANC and not an independent body.
26. It was put to the SG that the respondent had not said anything about regime change in Botswana. The SG's response was that it could be implied.
27. The SG agreed with the proposition put to him that dispossession of land occurred through wars of dispossession.
28. It was put to the SG that John Block, chairperson of the ANC in Northern Cape, would testify that the allegation in Charge 3 was false. The SG did not comment.
29. The SG was asked what was wrong with the respondent's utterance that land should be taken without paying if the willing buyer/willing seller system had failed. His response was that the taking of land without compensation flew in the face of the Polokwane conference and Durban NGC resolutions. Even if land was expropriated for public purposes, there was a need to pay compensation.
30. The SG agreed with the proposition put to him that expropriation without compensation was not racist or tantamount to political intolerance.
31. It was put to the SG that the respondent was referring to wars of dispossession and not to Whites. The SG agreed that after viewing the audio visual clip of the event, the respondent had not used the word "Whites".
32. It was put to the SG that evidence would be led that the respondent never said that Whites were criminals. The SG's response was that the respondent did not use the word, "Whites."
33. After being referred to the Youth League induction manual on the issue of the autonomy of the Youth League as the reason for previous leaders of the Youth League in the 40s, 50s, 60s and even Peter [Mokaba] not being formally disciplined by the ANC, the SG's response was that the induction manual was written by someone in a particular time and the difference could be attributed to a matter of leadership style.
The second witness called by the complainant was comrade Lindiwe Zulu.
A summary of her evidence is as follows:-
1. She was the special adviser to the President on international relations and foreign affairs issues. The position entailed advising the President on the foreign policy approach of the South African government ad on multi- lateral issues.
2. She was a member of the NEC of the ANC and a member of the ANC's sub-committee on international relations. The sub-committee reports to the NEC on policy matters.
3. One of the functions of the sub-committee was to ensure that the policies of the ANC and the ANC in government are synchronized.
4. The NEC, Youth League and Womens' League are part of policy formulation and implementation and the ANC's alliance partners were invited from time to time.
5. Whilst the Youth League had its own international programmes with other youth organizations, it was bound by ANC policy.
6. After viewing the audiovisual clip of the ANC Youth League press conference of 31 July 2011, her comment was that the respondent said that the first interaction by the team will be by the end of August either by going to Botswana or inviting them here.
7. After being referred to paragraphs 35 to 38 of the ANC resolution on Party-to-Party relations, her comment was that the manner in which the utterances of the respondent on the audiovisual clip were made was disturbing because he talked about the creation of a team to help the people of Botswana.
8. She testified that the President of Botswana had been invited by President Zuma to South Africa about 3 or 4 months ago and the purpose of the visit was to strengthen bilateral relations, good neighbourliness and common approaches to issues in the sub region.
9. She said that the idea of sending a team to Botswana was of concern and it would impact negatively on relations with Botswana. 10. She said that once it was out in the public, one had to deal with it because the ANC will be accused of interfering with its neighbour.
11. The reason for having representatives of the Youth League and Womens' League on the ANC's International Relations sub committee was to ensure unison of approach as the ANC.
12. In her role on the government side, she engaged with diplomats. After the statement on Botswana was made the ambassadors of the Netherlands, Sweden and the US sought clarification and wanted to know whether she did not see it as South Africa interfering with its neighbours.
13. She was attending a SADC summit after the respondent's utterance and the adviser to the President of Botswana jokingly asked whether South Africa was planning to remove them from office.
14. China also raised concern about South Africa's intended interference in Botswana and she had to explain ANC policy.
15. She said that if the Youth League was not happy with the situation in Botswana, there were ways and means to engage with the ruling party in that country and referred to paragraph 38 of the ANC resolution on Party-to Party relations.
16. The resolution of the Youth League created the impression that the South African government was saying one thing and the ANC doing another.
17. The Youth League resolution on Botswana had more of an impact at the level of government.
18. The utterance of the respondent would create or had the potential to create a negative perception internationally. She added that one had to explain that it was not the policy of the ANC to interfere in a government that had been elected.
19. It was not the policy of ANC to engage in regime change. The policy was to engage in party to party relations.
20. She said that the ANC does not make statements about toppling or sending teams into another country.
21. Although the ANC-led government supported UN Resolution 1973 on Libya, the ANC was opposed to subsequent developments which involved regime change.
22. Regime change could come about in many ways, not necessarily by force.
23. It was the responsibility of citizens of a country to change the government if they so deem fit.
24. Her comment in a newspaper about the Youth League's statement on Botswana was in response to an editorial in the Star newspaper.
Under cross-examination
1. When asked what she understood from the Youth League statement, her response was that the Youth League was going to send a team to Botswana. She said that she did not hear the word "command" on the audiovisual clip.
2. When asked whether she was aware of any other pronouncements, her response was that she did not know of any other pronouncement other than what was said in the media. She heard the words "command team" in the media. Although her understanding was that the Youth League would be sending a team to Botswana, she did not hear the respondent say he was going to Botswana.
3. It was put to the witness that the respondent will say that the intention was to provide material support to opposition parties in Botswana. Her response was that there was nothing wrong with that even of it meant changing the government because they would have to go through an election to do so. The situation would have been no different if the ANC or ANC Youth League assisted them in the context of an understanding that we are progressive forces engaging with other progressive forces.
4. When asked to comment on the tension between the ANC and South African government's position on Botswana, her response was that in the circumstances one had to ensure that the manner of engagement should not fuel that tension.
5. When asked about the concept of collective leadership, her response was that if a collective took a decision contrary to ANC policy, then the collective must accept responsibility.
6. It was put to the witness that the Youth League was critical of Botswana and concerned that it had fallen under imperialist influence. Her response was that if the ANC or South African government was not happy with the situation in any country, the issue was how does it express its concern so that the situation is not made worse. South Africa has a bilateral protocol with Botswana, which is the elected government in that country and has to be respected. She added that ‘we have to be careful about what we say because you do not want the ANC to be seen as undermining the government that was in place and elected'.
7. She agreed with the proposition that what the respondent said on the audiovisual clip about the foreign policy of Botswana was not contrary to ANC policy. Moreover, the international community was not happy with certain things that the Botswana government was doing. She added that one could not treat Botswana as a province of South Africa because it was an independent country with an elected government and in dealing with Botswana one had to be mindful of maintaining African unity. In her view, ‘the question was how does one engage with Botswana in order to make that government not to do what it is doing'.
8. She agreed that there was nothing said by the respondent on the audiovisual clip which indicated interference. Her concern was based on media reports about the ANC Youth League's intended activities in Botswana. She added that it was not correct for the Youth League to engage in foreign policy at that level.
9. When asked about the Youth League statement (Annexure E1), she agreed that there was a decline in the African agenda and that blame could be apportioned to the AU and SADC.
The complainant closed its case.
J. Evidence for the respondent
The first witness called was comrade Rapu Molekane. A summary of his evidence is as follows:-
1. He was involved in the youth movement since 1978 with the SSRC in Soweto, COSAS, Soweto Youth Congress (SAYCO), Young Christians Students, and SAYCO which was the largest affiliate of the United Democratic Front.
2. SAYCO was in discussion with the ANC Youth Desk since 1987 and met the Youth Desk in Harare.
3. In March 1991, after the ANC was unbanned, a congress took place in Kyamanzane when SAYCO was disbanded and work was commenced on the ANC Youth League constitution.
4. There were debates on the relationship with the ANC.
5. The ANC Youth League was not intended to be a Youth Desk of the ANC appointed by the ANC. He said that the Youth League would run its own affairs and operate within the broad parameters of ANC policy.
6. The ANC Youth League was formed in 1991 in KwaNdebele.
7. At times the youth engaged with the ANC leadership especially on the question of the armed struggle.
8. He said that SAYCO initiated the Save the Patriots Campaign and only dropped it after comrade Mandela obtained an undertaking from President De Klerk that no prisoner would be hanged.
9. The ANC Youth League initiated a policy discussion on the environment which it took through the structures of the Youth League and then to the ANC. It took some time to get it on the ANC agenda and the Youth League had to lobby vigorously.
10. The principle of collective leadership applied in the Youth League. It never had a situation where an individual was accountable because whatever was said was done on behalf of the Youth League. 11. He could not recall a single pronouncement that required the permission of the ANC.
Under-cross examination
1. He said that bilateral relations could be affected if unconfirmed policy was communicated to parties in the region.
2. He agreed with the description of autonomy in Rule 7.4 of the ANC Constitution and said that autonomy was a political legal concept which was neither overall nor complete.
3. After being referred to Annexure JM 2, he confirmed that the autonomy of the Youth League was qualified.
A summary of the evidence of the respondent, comrade Julius Malema, is as follows:
1. He was elected as President of the ANC Youth League in 2008 and re- elected in June 2011.
2. The ANC Youth League Congress in June 2011 was attended by about 15 ANC deployees. The purpose of their presence was to give guidance and leadership, to ensure that the ANC Youth League confines itself to policies of the ANC and to ensure the success of the congress.
3. The ANC did not tell the ANC Youth League what decisions it could take.
4. The respondent supervised the commissions at the Youth League meeting. When passing one of the groups, he saw comrade Nathi Mthethwa speaking at a commission.
5. The NEC of the Youth League met between 29 and 31 July 2011 and the meeting was addressed by 3 (three) members of the NEC of the ANC.
6. He was shown the Youth League statement (Annexure E1) and his
comments were as follows:-
6.1 The statement was the collective view of the ANC Youth League.
6.2 The statement was read at the press conference by the SG of the Youth League.
6.3 Ordinarily at the end of the NEC the President would have read the statement. In this instance, the other NEC members felt that the SG should read it because there were issues of the respondent's family trust and he should be removed from the spotlight.
6.4 He did not address the press conference but answered some of the questions asked by journalists;
6.5 Any member of the Youth League NEC could comment;
6.6 If he had said something out of line, other members of the Youth League NEC could have corrected him and clarified the statement.
7. He confirmed that he had uttered the words as contained in the Charges.
With respect to Charge 1, his utterance was in response to the following question - "can you elaborate further on the sentence which says that there is a decline since the departure of Thabo Mbeki?"
8. The respondent explained that when asked to elaborate or expand on the Youth League statement, ‘you cannot re-read the statement. You have to elaborate and give more facts as to what you mean by that.'
9. He explained that by the word, "conduct" in Charge 1, he was referring to the conduct of imperialists being tempted to re-colonise Africa.
10. He gave the following explanation for his utterances in Charge 1:
10.1 It was critical of the AU and the SADC;
10.2 It was not a ‘dig' at or critical of comrade Zuma;
10.3 Former President Mbeki was very passionate about Africa; and
10.4 It praised the role that comrade Mbeki played because it was the tradition in the ANC to celebrate leaders.
11. The respondent denied that he was criticizing President Zuma.
12. When asked about the role of leaders in the revolution, the respondent said that leaders played subjective roles that had the potential to either undermine or advance the objective realities of any revolution. He added that even President Zuma praised President Mbeki for his role in South Africa and the resolution of the conflict in Sudan.
13. With regard to Charge 2, the respondent said he answered questions and did not address the press conference. He did so in his capacity as the President of the ANC Youth League at a press conference organized by the Youth League NEC whose members were also present.
14. He admitted that he uttered the words in allegations (i) and (ii) of Charge 2 and said that the purpose was to expand on the allegation in (iii), which he did not utter but which appeared in the Youth League statement.
15. He said that allegations (i) and (ii) were selected words from his whole response.
16. He was told that the ANC had either helped in the formation of the BNF or gave it material support in the form of vehicles and finance.
17. The ANC Youth League never had a problem with engaging the youth wing of the ruling party. The ANC Youth League visited Botswana and engaged with the BDP youth to influence it to take a position that was anti-imperialist and anti-colonialist.
18. The BDP youth structure had no power to influence any policy or direction of the mother body. The ANC Youth League failed because of the limitations placed on the BDP youth by the ruling party.
19. With regard to Charge 2, the respondent stated that he did not use the word, "command" when talking about a team.
20. The ANC Youth League had invited the BNF youth to the Youth League congress with a view to influencing them to take an anti-colonial and anti-imperialist posture. The intention was to strengthen them to win elections.
21. He said that nothing should be deduced from the use of strong language because during the elections in May this year the ANC used words like "war room". This kind of language was used everyday in the ANC.
22. The Youth League had no intention of toppling the government in Botswana through a military coup or to train people militarily.
23. The respondent said that his utterances were not a deviation from ANC policy. The ANC Youth League was actually reinforcing the work of the ANC.
24. Instead of instituting disciplinary proceedings, the ANC should have called in the respondent and told him what it found wrong. If he agreed, he would have retracted his statement.
25. The ANC did not inform the Youth League that it disapproved of any of the resolutions of the Youth League Congress.
26. Resolution No. 40 which was adopted at the Youth League Congress related to Botswana.
27. The resolutions of the Youth League Congress were submitted to the ANC.
28. The respondent was not aware that the Youth League had responded to ANC statements on Botswana and when he found out, he instructed the Youth League to publicly withdrew its statement on Botswana because he was of the view that it was a matter that could be discussed with the ANC in a meeting and not in the manner in which his comrades in the Youth League did.
29. He understood autonomous to mean relative independence. Relative independence meant that once you have gone overboard you could be corrected on policy. But if the timing was not correct and the leadership of the ANC felt uncomfortable, you would be asked to withdraw the statement.
30. He referred to an article in the Sunday Times newspaper dated 14 August 2011 where the opposition welcomed the Youth League's intention to help them unite and take power in Botswana.
31. With regard to Charge 3, the respondent said he was invited in his capacity as President of the ANC Youth League by the ANC Provincial Secretary, comrade Zamane, to address a rally in Galeshewe in Kimberley on 9 May 2011.
32. President Zuma spoke at the rally after him and did not indicate that the respondent had said anything which was inappropriate.
33. Together with President Zuma he addressed another rally in Kakamas.
34. He did not use the word, "Whites."
35. The word "they" was a reference to the colonialists who had taken the land from the people.
36. In his view anyone who robs is a criminal. Those who took land away from people, including homeland leaders, were criminals.
37. Apartheid was a crime against humanity. Not only Whites but homeland leaders also implemented apartheid.
38. Only the Sunday Independent reported that he had said that Whites were criminals. At a subsequent NEC meeting he clarified his speech and said that he did not refer to Whites.
39. He was surprised that this Charge was being brought against him because he believed it was unreasonable to institute this Charge 3 months after it happened. He added that this matter was raised in the application to quash the charges.
40. His understanding of autonomy was that the Youth League had the right to have its own conferences, take its own decisions and announce those decisions. If these were outstanding issues which required further processing, the Youth League would announce that these policies will need to be processed internally in the ANC.
41. The nationalization debate was started in the Youth League and the ANC announced that nationalization was not the policy of the ANC.
42. The ANC was inconsistent because nationalization and expropriation without compensation were not part of ANC policy but were being discussed openly and no action was taken against anyone.
43. The Youth League had the right to come up with policy positions different from that of the ANC and place such positions in the public domain. The respondent added that it would be impossible to keep issues ‘under the table' until they have gone through the ANC.
44. The respondent said that it was not the policy of the ANC to prevent anyone from talking about an issue in public that was not ANC policy.
45. He believed that he was being charged in his capacity as President of the ANC Youth League. The ANC should have acted against the Youth League and not him personally.
46. The respondent said that he had no position on nationalization or on Botswana. These were Youth League positions. He added that if he was expressing a personal view, the NEC members of the Youth League would have corrected him.
47. The respondent said that if the Youth League Congress or the NEC of the Youth League had not adopted a resolution on Botswana, he would not have pronounced on this issue.
Under-cross examination
1. When asked whether President Zuma represented the African agenda well, his response was that he did.
2. When asked whether the ANC represented the African agenda well, his response was ‘absolutely'.
3. When asked whether President Zuma and the ANC ensured that the AU and SADC prioritized the African agenda, his response was that they were trying their very best.
4. When asked who had no longer made the African agenda a priority, his
response was that it was the SADC and AU.
5. When asked whether there were any short-comings in the ANC approach, his response was that the ANC and President Zuma were not getting sufficient support from other member states but went on to qualify this response by saying that he had no personal knowledge of the inner workings of the AU and SADC. He added that his personal view was that those structures were no longer active as during the time of President Mbeki.
6. When asked what the decline entailed, the respondent referred to the situation in Libya and Ivory Coast and said that all of a sudden the Western powers identified some weaknesses and saw an opportunity to undermine the leadership of the AU and an opportunity to loot.
7. When asked why he was using the name of President Mbeki as a point of reference as to when the AU and SADC formations were vigorous on the anti-imperialist agenda, his response was that he was elaborating on what was captured in the statement of the Youth League. He added that looking at the situation in Libya and the Ivory Coast the Youth League was reminded that during Mbeki's era, he (Mbeki) led African forces to oppose the attack on Iraq. Even if the imperialists continued to do so, the Youth League was not going to support such action.
8. When asked why he singled out President Mbeki and not say that the AU and SADC supported the UN resolution to attack Libya, he blamed the security committee of the AU and said that although South Africa supported the UN resolution 1973, he believed that there may have been factors at play which prevented SA from influencing the AU. But at the end of the day an outcome favourable to the imperialists emerged.
9. When asked whether a different outcome would have been realized if President Mbeki was still the leader of South Africa and a leading figure in the SADC and AU, his response was that it was the suspicion of the Youth League that if President Mbeki was still part of those structures he would have persuaded them differently.
10. When asked whether there was a decline in the AU and SADC in making decisions that were anti-imperialist and anti-colonialist since the departure of President Mbeki, his response was that that was the observation of the Youth League.
11. When asked whether the current position in the AU and SADC happened to coincide with the departure of President Mbeki, his response was that it did.
12. When asked whether South Africa was playing its role as President Mbeki did to influence the SADC and AU towards the vision South Africa
stands for, his response was that South Africa was playing this role adequately and there has not been a lesser contribution from South Africa.
13. When asked whether the SADC and AU leaders were not worthy of the leadership of these formations, his response was that they had lowered their guard and that is why imperialists thought it was an opportune moment to intrude. For that reason he thought they (SADC and AU) were really doing nothing.
14. When asked why he elaborated on the Youth League statement, the respondent said that ‘you cannot just read the statement. You have to give more facts as to what you mean'. His elaboration was an attempt to expand on what has been written in the statement.
15. He said that comrade Maite, the Minister of International Co-operation, always raised her frustration in NEC meetings about the SADC and the AU.
16. With regard to Charge 1, when asked whether his utterances created the impression that President Mbeki was better than President Zuma, he denied it and said that if you arrive at that conclusion you will be analyzing things from a factional position. He added that the Youth League loved President Zuma and supported him when it was not fashionable to do so and it was the ANC Youth League which called for the removal of President Mbeki because it did not like his management style.
17. It was put to the respondent that his utterances had the potential to divide the ANC between those who believed that President Mbeki was a better leader and those who believed that President Zuma was a better leader. The respondent's response was that the two were not contesting. The one was a current leader who deserved respect and the other was a former leader.
18. He said that at the Youth League Congress in June 2011, the BNF Youth President made the request for assistance in Botswana.
19. It was put to the respondent that point 5 of the 1965 UN Resolution on the Inadmissibility of Intervention in Domestic Affairs of States provided that every state had an inalienable right to choose its political, economic, social and cultural systems without interference in any form by another state. The respondent agreed.
20. After being taken through the Freedom Charter, the respondent agreed that the ANC undertook to respect the sovereignty of states and the right of people of those countries to determine their own future.
21. The respondent agreed that the Freedom Charter protected the rights of Botswana.
22. After being taken through a document on regional relations, the respondent agreed that South Africa's relationship with its neighbours was high priority.
23. The respondent agreed that the ANC cautioned the South African government against hegemonic ambitions.
24. When asked why the Youth League did not discuss its resolution with the ANC before going public, the respondent offered two responses. The first was that the Youth League was in the process of doing that at its scheduled meeting with the ANC on 8 August 2011 when the disciplinary action against Youth League members intervened. The second described the modus operandi in the Youth League which was that after Congress resolved, the NEC and NWC would put together an action plan and implement decisions of Congress.
25. When asked why the Youth League did not take its issue on Botswana to the ANC International Relations sub-committee, the respondent's response was that the existence of the ANC International Relations subcommittee did not take away the right of the Youth League to pronounce on international issues.
26. When asked why the Youth League had apologized to the ANC for its resolution on Botswana, the respondent replied that the apology did not change the decision but was given because of the arrangement between the Youth League and ANC not to disagree in public.
27. It was put to the respondent that the decision on Botswana was not ANC policy, his response was that it was part of ANC policy.
28. With regard to Charge 3, when the respondent was asked to explain the use of the word "they", his response was that he was referring to robbers, stealers and takers of the land.
29. When asked what he understood by the concept of leadership, his response was that leadership was about providing leadership. Irrespective of the number of issues one had, it was imperative to reinforce the African agenda. He added ‘there are times when you preferred some leaders over others because of their decisive representation on particular issues'.
30. When asked why the Youth League statement of 31 July was not sent to the ANC, the respondent replied that only resolutions and not statements of the Youth League are sent to the ANC.
Comrade Zamane Saul, Provincial Secretary of the ANC Northern Cape testified that:-
1. He invited the respondent to address the rally in Galeshewe.
2. The respondent spoke before President Zuma, who also spoke at the rally.
3. He was present at the rally and the respondent did not refer to Whites but to colonizers.
Comrade Fikile Mbalula testified that:-
1. He was the Secretary General of the Youth League for two terms and was later elected President.
2. The issue of the autonomy of the Youth League was articulated at a congress in Durban in 1990.
3. In his time there were many policy differences between the ANC and the Youth League. He referred to the death penalty, armed struggle and the sunset clause at CODESA.
4. He always understood that policy positions of the Youth League had to be adopted by the ANC.
5. His understanding of autonomy was allowing one the space to grow. In terms of its autonomy the Youth League would have its own procedures.
Under cross-examination
1. When asked to give his understanding of Rule 7.4 of the ANC Constitution, his response was that the Rule set out boundaries of the Youth League's autonomy and provided constitutional limitations.
Comrade Professor Muxe Nkondo testified that:
1. There is a body of literature which supports the conclusion that the colonizers turned large tracts of land into game farms.
2. The colonizers took the land away from locals through wars of dispossession.
3. In his view, the respondent was referring to colonizers and not to Whites.
Comrade Tokyo Sexwale testified that:-
1. He has been a member of the ANC for 40 years.
2. He was invited by the respondent to testify.
3. He was a member of the NEC since the unbanning of the ANC and was elected to the NEC in 2007. In the past he was involved in issues of discipline and disciplinary proceedings and participated in drafting the ANC Constitution.
4. In preparation for this hearing he realized that certain Rules in the ANC Constitution rendered the current proceedings irregular.
5. His reason for testifying was to air certain issues at the hearing which he considered to be important.
6. In his view the disciplinary hearing must be conducted with justice and fairness and disciplinary proceedings should not be used to settle political scores.
7. At a four day NEC meeting of the ANC in August 2011, discussion on disciplinary proceedings against Youth League members was muzzled and the ruling of the chairperson that the matter was sub judice was wrong.
8. He was told at the NEC meeting that the NDC was tasked with investigating and instituting charges against the Youth League members.
9. The manner of instituting disciplinary proceedings against Youth League members was irregular and constituted a violation of the ANC Constitution.
10. He said that comrade Zuma rubbished the disciplinary process against comrade Malema with his recent comments.
11. In terms of the ANC Constitution the charges should have been tabled before the NEC which is the highest decision making body in the ANC.
This was not done.
12. Only a few of the National Officials instituted the charges and the ANC Constitution was not clear on the validity of this action.
13. He referred to Rules 25.3, 25.13(a) and 25.2 and stated:-
13.1 the NDC must be clear about the genesis of the Charges;
13.2 the NDC was duty bound to ensure that the Charges were properly placed; and
13.3 the NDC had a duty to reject improperly based Charges.
14. The disciplinary proceedings were being used to stifle debate and solve private problems because in his view somebody was waiting for the earliest opportunity to institute disciplinary proceedings as soon as the respondent said something wrong.
15. He referred to Rules 12.1, 12.2(a), (c) and (e) and concluded that the NEC's authority was undermined.
16. He said that in terms of Rule 25(6)(f), the members of the NDC who were also NEC members were conflicted and should have recused themselves.
17. The failure to follow proper process invalidated the disciplinary committee sittings and the continuation of the process, in view of these irregularities, was unlawful.
18. In comparison with the Womens' League and Veterans League, the ANC Youth League enjoyed more autonomy.
19. The respondent will still maintain his position in the ANC Youth League even if he is expelled.
20. He said that a person does not necessarily have to be a member of the ANC to be a member of the Youth League.
21. The NEC was comprised of about 110 members.
22. The respondent's apology should have been given due consideration prior to the institution of disciplinary proceedings.
23. On Charge 1 he said that:-
23.1 There were many examples which showed that the African agenda was no longer a priority;
23.2 The imperialists and colonizers were dividing Africa;
23.3 The utterances could not be dividing the ANC if fingers were being pointed at the imperialists;
23.4 With reference to the Youth League statement in annexure E1, the allegations in the Charge were misplaced and out of context;
23.5 Comrade Zuma was not mentioned in the Charge. The comparison was brought in by journalists and analysts;
23.6 It was an appeal by the respondent for the African agenda to be prioritized;
23.7 It was not clear how one charges a spokesperson who speaks on behalf of an autonomous body;
23.8 The NEC applauded the Youth League congress as a major improvement over the last congress in Bloemfontein;
23.9 The charge constituted a gross misrepresentation; and
23.10 Comrade Kgalema Motlanthe took over as President after the departure of comrade Mbeki.
24. On Charge 2 he said that:-
24.1 The utterances did not constitute a deviation of ANC policy;
24.2 As a member of the ANC Finance Committee, he was aware that the ANC had given money and vehicles to the BDP in Botswana;
24.3 The formulation of the Charge did not make sense and was moving from the mundane to the ridiculous;
24.4 It seemed that somebody wanted to destroy the ANC Youth League;
24.5 There was a clear agenda behind the charges because the issue of Botswana was resolved by about 5 000 delegates at the Youth League congress, then discussed by 38 members of the NWC of the Youth League, followed by the 6 NEC Youth League members and finally one person is charged for the resolution;
24.6 The respondent was merely articulating a threat that already existed in Botswana since 1991. At that time he was commissioned by the ANC to conduct a threat analysis after the US was considering establishing a military base in Botswana; and
24.7 The respondent's utterances were not in conflict with the ANC's resolution on Party-to Party relations.
25. On Charge 3 he said that:-
25.1 Racism was sown with the theft of land by the colonizers;
25.2 The Charge was dishonest; and
25.3 Comrade John Block objected at an NEC meeting about a report in the Sunday Independent newspaper which stated that the respondent was referring to Whites.
Under cross-examination:-
1. Comrade Sexwale agreed that the National Officials could refer acts of misconduct directly to the NDC in terms of Rule 25(6)(a) of the ANC Constitution.
2. He agreed that in terms of Rules 25.5 and 25.8(a), the NDC had the authority to finalise the disciplinary proceedings and impose a sanction.
3. When asked on what basis he testified that the NDC members who were also NEC members were conflicted, he conceded that none of the NDC members were National Officials and that he based this submission on the response of the ANC National Chairperson at the NEC meeting that the NDC was requested to investigate and proceed with disciplinary action.
4. When referred to paragraph 2 in the Appendix of the ANC Constitution which states that any official could institute disciplinary proceedings, comrade Sexwale's response that the status of National Officials was not clear in the Constitution.
5. When asked to point out which part of the ANC Constitution obliged a complainant to refer the charges to the NEC, comrade Sexwale's response was that there was no clause in the ANC Constitution but the NEC was the highest decision making body and it was politically inappropriate not to refer the Charges to the NEC. To that extent the National Officials had erred.
6. The NDC had a political duty to ensure that the Constitution was not being abused since any structure of the ANC could hold the NEC accountable.
7. It was put to comrade Sexwale that the respondent was comparing Presidents Mbeki and Zuma in Charge One. His response was that it could be interpreted as such but, even so, it was not offensive.
8. Comrade Sexwale agreed that there was a need to minimize the tension between clauses 35 and 38 on the ANC resolution on Party-to-Party relations.
9. With regard Charge Three, comrade Sexwale said that the leadership should have sought clarification instead of disciplining the respondent.
On re-examination
1. Comrade Sexwale stated that in terms of Rule 5.2 (g) of the ANC Constitution the NEC of the Youth League was obliged to follow the Youth League resolution otherwise there would be anarchy.
2. He did not know how the National Officials quorated their meetings but he understood that only 4 (four) of them met to decide on disciplinary action against the Youth League leaders.
3. He said that the general rule in law is that if a document is silent, it can be interpreted either way.
4. Rule 25.6(a) made a distinction between the institution of disciplinary proceedings and referral to the NDC.
5. He attended the disciplinary hearing out of a sense of duty.
A summary of Comrade Winnie Mandela's evidence is as follows:-
1. She was a member of the ANC since the late 1950s and a member of the NEC of the ANC since 1991.
2. Although approached by the respondent, she should be regarded as a "special witness" to assist the process.
3. The Youth League was autonomous in every respect except financially.
4. The Leagues had every right to have their own policies, organize their own activities, take their own decisions and to campaign publicly for their policies as long as all that happened within the framework of the ANC's struggle for liberation of the people.
5. There was always tension between the senior leadership of the ANC and the youth of the day and no disciplinary action was taken in the past.
6. During the ‘Potato Boycott' campaign in 1959 the then President of the ANC, Dr Xuma, was furious with the youth for having carried on with the boycott.
7. In terms of the ANC Constitution the ANC has a constitutional task to supervise and oversee the work of the League and guide the youth.
8. The NEC of the ANC congratulated the Youth League on the success of its congress this year.
9. It was a contradiction to charge the respondent for resolutions taken at the Youth League congress. If anyone has to be charged, the Youth
League in its entirely should have been charged.
10. The respondent informed her at an NEC meeting that he was being charged. She had to leave the meeting early due to a doctor's appointment but later heard from other NEC members that the NEC did not discuss the issue of disciplinary action against the respondent.
11. In terms of Rule 12(1) of the ANC Constitution, the decision to charge to charge the respondent should have been considered by the NEC which is the highest decision making body between conferences.
12. In terms of the ANC Constitution the National Officials is not a constituted structure but individual members of the ANC who are deployed as officials. Consequently, the Charges referred by the officials would result in an irregularity.
13. There was room for a political solution as was the case when she persuaded the Human Rights Commission not to proceed with charges against the respondent for his utterance that he would "kill for Zuma".
14. The NEC of the ANC had to first consider the Charges before proceeding with disciplinary action.
15. With regard to Charge 3, comrade Mandela said that it was not possible to bring such a Charge. The struggle for land was still continuing because according to the Freedom Charter the people were robbed of their land.
16. The ANC started imploding before the Polokwane conference.
17. Comrade Winnie Mandela clarified that giving evidence did not constitute direct support for the respondent.
18. She took umbrage at a newspaper report (Annexure JM 13) that attributed a comment to President Zuma that she was unprincipled for agreeing to testify for the respondent. She honestly believed that the President was misquoted but was of the view that the ANC should have corrected the article.
Cross-examination
Prior to commencement of cross-examination the Chief National Presenter
requested the NDC to consider comrade Winnie Mandela's evidence in accordance with the rules applicable to opinion witnesses.
1. When referred to Rules 7.3 and 7.4 of the ANC Constitution, comrade Winnie Mandela agreed that the policies of the Youth League cannot be in conflict with ANC policy.
2. When questioned about paragraph 2 of the Appendix to the ANC Constitution which stated that disciplinary proceedings could be instituted by any organ or official of the ANC, comrade Winnie Mandela responded that she was not an expert on the ANC Constitution.
The respondent closed his case.
K. Onus of proof
1. The onus was on the respondent to provide an explanation for his utterances which, on a balance of probabilities, was reasonably possibly true.
2. The onus was on the complainant to prove, on a balance of probabilities, that the utterances in the Charges constituted misconduct and contravened the ANC's Code of Conduct.
L. Arguments advanced by respondent in his Heads of Argument
1. The respondent advanced several arguments in his Heads of Argument, all of which are dealt with in this Finding.
2. However, the respondent specifically requested the NDC to decide whether the disciplinary proceedings were validly instituted in accordance with the ANC Constitution.
3. Respondent argued that a resolution of this argument, if upheld, would not only put an end to the disciplinary proceedings against him but also against the other members of the Youth League who have been charged.
4. In the NDC's view, this argument encompasses two aspects:-
4.1 whether the ANC Constitution makes provision for a structure known as the "National Officials"; and
4.2 if so, did the National Officials have the power not only to refer but also to institute disciplinary proceedings.
5. The Charges against the respondent and the other members of the Youth League were instituted by the National Officials.
6. It was argued that Rule 7 of the ANC Constitution provides for the organs that constitute the organisational structure of the ANC and National Officials is not part of that organisational structure.
7. On reading the ANC Constitution as a whole, it is common cause that the ANC has a National Executive Committee, National Working Committee, Electoral Commission, National Finance Committee, Provincial Conference, Provincial General Council, Provincial Working Committee and Chaplaincies and that provision is made for the establishment of these institutions in different parts of the ANC Constitution and not under Rule 7.
8. The word "Official" is defined in the ANC Constitution as ‘one who holds an office or position of authority in the organization'.
9. The word "organ" is not defined in the ANC Constitution and would take its ordinary and applicable meaning i.e. "a means for performing some action".
10. Rule 13.1 of the Constitution makes provision for the establishment of a National Working Committee and the election of a National Working Committee.
11. Rule 12(3)(a) of the Constitution provides for the election of the President, Deputy President, National Chairperson, Secretary General, Deputy Secretary General and Treasurer General to the National Executive Committee together with other elected and appointed members.
12. Rule 13(2) of the Constitution provides for the election of the President, Deputy President, National Chairperson, Secretary General, Deputy Secretary General and Treasurer General to constitute the National Working Committee together with other elected and appointed members.
13. Rule 16 of the Constitution designates the 6 (six) portfolios in Rule 13.2 as "officials" and sets out the duties and functions of the incumbents. It also provides for a National Chaplaincy.
14. Rule 25(6)(a) of the Constitution empowers the national officers to refer any violation or misconduct directly to the NDC for determination.
15. Whilst Rule 25(6)(a) refers to national officers and not to national officials, it can be inferred that national officers is intended to be a reference to the National Officials. This was also conceded by the respondent.
16. Clause 3 of the Appendix to the ANC Constitution empowers the NDC to hear and decide cases referred to it by the National Officials.
17. It can also be inferred that an organ exists in the ANC known as the "National Officials", which is distinguishable from the National Executive Committee and the National Working Committee and that such organ has the powers conferred on it in terms of Rule 25(6)(a) read with the Clause 3 of the Appendix to the Constitution.
18. The words, "or the relevant body exercising its right to invoke to disciplinary proceedings" in Rule 25.3 includes "National Officials" when read with the right of other organs such as the NEC to invoke disciplinary proceedings.
19. Furthermore, Rule 25.3 confers three rights to the National Officials viz.
19.1 To satisfy itself that disciplinary proceedings are warranted; 19.2 To decide to institute disciplinary proceedings; and
19.3 To refer the matter to the NDC, to proceed with such disciplinary proceeding.
20. Consequently, the respondent's argument that the National Officials does not exist and that, if it existed, it could only refer and not institute disciplinary proceedings is rejected.
M. Issues to be determined by the NDC
After viewing the audiovisual clip, Exhibit JM 10, the NDC was satisfied that the words, "command" and "Whites" were not uttered by the respondent.
From the line of cross-examination of the complainant's witnesses, the respondent's own evidence and that of his witnesses, and his Heads of Argument, the following issues emerged, which in the view of the NDC, required adjudication by the NDC:
1. The respondent was acting in a representative capacity and therefore could not be held personally liable;
2. The ANC Youth League operates as a collective leadership and therefore its leaders cannot be charged individually;
3. In respect of Charges 1 and 2, the respondent was not addressing a press conference but was elaborating on the statement made by the Youth League in response to questions from journalists;
4. The ANC Youth League is autonomous and therefore independent;
5. The ANC deals differently with alliance partners and autonomous bodies and is therefore inconsistent;
6. The ANC Youth League has traditionally been militant and therefore the conduct of the current leadership should not be judged differently;
7. In respect of Charge 1, that the respondent was not comparing Presidents Mbeki and Zuma but was elaborating on the Youth League's statement.
8. In respect of Charge 2:-
8.1 the Charge was fatally defective;
8.2 the respondent was acting in a representative capacity and therefore could not be held personally liable.
8.3 the Youth League was lobbying support for its position on Botswana;
8.4 the respondent was responding to questions and amplifying the Youth League statement; and
9. In respect of Charge 3, the respondent was referring to colonizers and the wars of dispossession and not to Whites.
N. Evaluation of the evidence and issues by the NDC
N1. Respondent's argument that he was acting in a representative capacity and therefore could not be held personally liable
1. Respondent testified that ordinarily he was responsible for reading the press statement after the conclusion of a NEC meeting.
2. On this particular occasion he was advised by the NEC of the Youth League not to read the press statement because the spotlight was on him and he could be questioned on issues relating to his family trust. For that reason the SG was mandated to read the Youth League press statement.
3. In the NDC's view, representation is based on a mandate.
4. The respondent elected to answer questions and participate in the press conference voluntarily and against the advice of his comrades. He was under no obligation or mandate to do so.
5. Based on the respondent's own evidence, it would probably have been in his best interest not to have attended the press conference at all.
6. In the NDC's view, the office of President of the Youth League should not be conflated with the mandate to represent the Youth League at the press conference.
7. The fact that the respondent was asked not to read the press statement, a task which was his responsibility as President of the Youth League, clearly indicates that he was not acting in any representative capacity at the press conference.
8. Even if the respondent did elect to attend the press conference, he was under no obligation to answer any questions.
9. Based on the respondent's own evidence, the NDC is of the view that his defence that he was acting in a representative capacity cannot be sustained.
10. Consequently, if any utterance of the respondent constituted a contravention of the ANC's Code of Conduct, the respondent could be charged for misconduct in his personal capacity and, if found guilty, would be personally liable.
N2. Respondent's argument that the ANC Youth League operates as a collective leadership and therefore its leaders cannot be charged individually
1. In response to Charges 1 and 2, the respondent maintained that he was merely articulating the decision of the ANC Youth League collective.
2. In the NDC's view, this argument is similar to N1 above and cannot be sustained for the reasons set out above.
3. Moreover, in the NDC's view, the concept of collective leadership is nothing more than an expression of democracy. This means that if the majority of a collective agree to decide a particular issue in a particularly way, then the rest of the collective has to abide by that decision irrespective of their personal views. In this sense, a member of a collective, by agreeing to accept the decision of the collective, associates himself or herself, by conduct, to be bound by the decision of the collective.
3. If that decision is subsequently found to be unlawful (i.e. it constitutes a contravention of ANC policy or the ANC's Code of Conduct) or unreasonable (i.e. it could expose the member of the collective to liability for articulating the decision of the collective) then that member, by doing something or saying something in furtherance of the collective decision, attracts personal liability.
4. On the respondent's own evidence, he would ordinarily have read the press statement after a NEC meeting. In this instance, he was advised by his comrades on the NEC not to address the press conference because he could be questioned on issues relating to his family trust. For that reason the SG was mandated to read the Youth League statement.
5. By choosing to respond to questions at the press conference, when there was no obligation upon him to do so and against the advice of the NEC, the respondent, by his conduct and by voluntarily taking steps in the furtherance of the collective decision, was acting in his personal capacity and consequently could attract personal liability if he was subsequently charged for misconduct for his utterances.
N3. In respect of Charges 1 and 2, respondent's argument that he was not addressing a press conference but was elaborating on the statement made by the Youth League in response to questions from journalists
1. The NDC finds the distinction to be superficial. Against the advice of his NEC comrades, the respondent voluntarily elected to be at the press conference and answer questions from journalists. He may not have read the Youth League statement but, on his own evidence, was free to comment at the press conference by answering questions. 2. The audiovisual clip of the press conference, which was admitted in evidence as Exhibit JM 10, showed the respondent directing the question and answer session at the press conference after the SG of the Youth League had read the press statement. The respondent actually identified the journalists that wanted to ask questions and answered every question by himself.
3. At no stage did the respondent call on any other member of the NEC of the Youth League to either answer a question or expand on or amplify any answer that he had given.
4. On this evidence, the NDC is of the view that the respondent, by his conduct, participated in and addressed the press conference.
5. Consequently, if the utterances of the respondent, in elaboration of the Youth League statement, constituted a breach of the ANC's Code of Conduct, he would be personally liable.
N4. Respondent's argument that the ANC Youth League is autonomous and therefore independent
In deciding this issue, the NDC took into account:-
· The ANC Constitution;
· The ANC Youth League Constitution;
· Annexure JM 2 - A life of its own: The autonomy of the ANC Youth League (adopted at the 1991 National Congress of the ANC Youth League in Kwandebele); and
· The evidence of comrades Rapu Molekane, Fikile Mbalula and Winnie Mandela.
ANC Constitution
1. Rule 7.4 of the ANC Constitution provides that "the ANC Youth League is open to all persons between the ages of 14 and 35. It will operate on a national, provincial and branch basis. Its objectives are to unite and lead young men and women in confronting and dealing with the problems that face the youth, and in ensuring that the youth make a full and rich contribution to the work of the ANC and the life of the nation. The Youth League will function as an autonomous body within the overall structure of the ANC, of which it will be an integral part, with its own Constitution, rules and regulations, provided that these shall not be in conflict with the Constitution and policies of the ANC.
2. Rule 7.5 provides that "Members of the Youth League over the age of 18 are expected to play a full part in the general political life of the ANC."
3. Rule 7.6 provides that "a member of the Youth League shall not be eligible for any position as office-bearer of the ANC or to attend ANC Conferences, members' or executive meetings of the ANC (unless specially invited), unless he or she is a full member of the ANC.
4. The definition of "autonomous" in the ANC Constitution means "The Leagues operate independently, next to and in addition to ANC structures and within the framework of the Constitution and policies of the ANC."
2. ANC Youth League Constitution
1. The relevant parts of the ANC Youth League Constitution provides as
follows:-
Article A - Preamble
The existence of the ANCYL derives from the Constitution of the ANC.
Article D: Aims and Objectives
1. The ANCYL shall support and reinforce the ANC in the attainment of the goals of the National Democratic Revolution and ensure that the youth make a full and rich contribution to the work of the ANC and to the life of the nation.
Article E: Status
1. The ANCYL shall be a legal persona with perpetual succession of power, apart from its individual members, to hold and alienate property, enter into agreements, and do all things necessary to carry out its aims and objectives and defend its members, its property and reputation.
Article F: Relationship with the ANC
1. The ANCYL shall be a voluntary youth organization and mass organ of the ANC.
2. The ANC Youth League shall function as an autonomous body within the overall structure of the ANC of which it shall be an integral part. It shall be based on the political and ideological objectives of the ANC.
3. Members of the ANCYL over the age of 18 shall be obligated to play a full part in the general political life of the ANC.
Article H: Rights and Obligations
1. Every member of the ANCYL above the age of 18 shall be obliged to join the ANC.
Article J: Structures
1. The President shall be the Chief Executive Officer of the ANCYL.
Article P: Dissolution
1. The National Congress of the ANCYL shall be entitled to decide on the dissolution of the ANCYL. Such a decision shall be subject to adoption or rejection at the National Conference of the ANC in accordance with paragraph 1 of the Preamble of this Constitution.
2. Upon dissolution or winding up the assets of the ANCYL remaining after satisfaction of all its liabilities, shall be given or transferred to the ANC.
3. Annexure JM 2: A life of its own
The relevant excerpts of this document relating to the meaning of autonomy and the relationship between the ANCYL and the ANC are:-
1. In the broad political and legal terms "autonomy" means "independence." This independence is, however, neither overall nor complete. It is qualified.
2. The ANCYL draft constitution refers to organisational autonomy of the League from the ANC. Organisational autonomy implies administrative autonomy. It means independence in structure and activity. The League is not merely an auxiliary or appendage of the ANC, but should have an organizational and administrative life of its own.
3. In terms of organizational autonomy, the Youth League can convene and hold its own conferences, take resolutions which affect it and its programmes, elect its own leadership, establish its own infrastructure, open bank accounts and run its own projects.
4. Political allegiance of the ANCYL to the policies and programmes of the ANC is founded on the common objective of establishing a unitary, democratic, non-racial and non-sexist South Africa. It means adherence to the political programme, strategy and tactics and ideological view of the ANC.
5. In cases where congress and other leading structures of the ANCYL take decisions which affect the political positions of the ANC, those positions are subject to endorsement, modification or even disapproval by the National Executive Committee of the ANC.
6. The starting point is not to want to suppress or look at it [the youth] with suspicion but rather to advise and guide its direction. It will be a big mistake to confuse the Youth League's desire for organizational independence with insolence, dissension or lack of confidence in the ANC.
7. Stifling the development of the youth militates against the very belief that our youth is the reserve force for our future struggles. It is only a nation that does not deserve its future which can stifle the development of its youth.
8. Discipline of the youth should be built on a high sense of responsibility.
9. One should always be vigilant of those who want to set up the youth
against the older generation. One form in which this conflict can come about is through a political dangerous slogan which elevates the place and role of the Youth League in particular and the youth in general to some "special place" as the vanguard of the struggle. Sometimes this development manifests itself in the youth displaying lack of tolerance towards older people who sometimes caution against what they see as hasty or tactically incorrect militancy on the part of the youth. In this regard we should always strive to strike a balance between impassioned militancy of the youth and the experience of the older generation.
10. The autonomy of the Youth League shall make it easier for it to evolve the youth independently in struggle, to organise, educate and to unite them. In the process of doing that it shall train both itself and those who look up to it for leadership. It should also inspire respect from the older generation and contribute towards the enrichment of ANC policy, activity and tradition of struggle.
4. NDC's evaluation of argument
1. Both comrades Molekane and Mbalula testified about the discussions that took place when the ANC Youth League was re-established in 1991 and about the relationship between the ANC and the Youth League.
2. In their understanding, the autonomy of the Youth League was qualified but the Youth League had the freedom of organizational independence and the freedom to develop policy for consideration and possible adoption by the ANC. This understanding, in the NDC's view, accords with the discourse set out in Annexure SM2.
3. The Constitution of the ANC Youth League attributes the existence of the Youth League to the ANC and specifically provides that it shall be located within the overall structure of the ANC. This is reinforced by the dissolution clause which provides that its assets shall vest in the ANC upon dissolution.
4. The main objective of the Youth League is to support and reinforce the ANC and Rule 7.4 of the ANC Constitution provides a constitutional mandate for the Youth League to achieve this objective.
5. Comrade Winnie Mandela testified that the Youth League was autonomous in every respect except financially.
6. "Autonomous" is defined in the ANC Constitution and, in the view of the NDC, the operative word in the definition is "operate" and not the word "independently."
7. The fact that the Youth League has chosen, in its Constitution, to be a
legal persona that would enable it to hold and alienate property and enter into agreements does not make it independent of the ANC. These powers, in the view of the NDC, speak to a degree of organizational independence. This organizational independence is, in turn, circumscribed by Rule 7.4 of the ANC Constitution which provides that the Youth League constitution shall not be in conflict with the ANC Constitution and policies of the ANC.
8. Moreover, Article 11.2 of Schedule A of the Youth League Constitution expressly subjects Youth League members to be sanctioned by disciplinary committees of the ANC and the Youth League by virtue of this provision, in effect, undertakes to ensure its enforcement. In the NDC's view, this provision, on its own, detracts from the argument that the ANC Youth League is independent.
8. In summary, if the Youth League seeks to operate outside of the ANC Constitution and policy, it will, in the NDC's view, be acting outside the constitutional doctrine of legality of the ANC Constitution and existing ANC policy. In other words, the ANC Youth League would be operating unlawfully.
9. On an analysis of all the evidence, the NDC is of the view that the ANC Youth League, like the Womens' League and Veterans League, has a degree of organizational autonomy but is not independent of the ANC.
10. Consequently, the respondent's defence that the ANC Youth League is autonomous and therefore independent of the ANC is rejected.
N5. Respondent's argument that the ANC deals differently with alliance partners and autonomous bodies and is therefore inconsistent
1. Put simply, the argument is that the ANC treats its alliance partners, COSATU and the SA Communist Party, differently from the Youth League and, by virtue of this conduct, is inconsistent.
2. This argument, in the view of the NDC, is misplaced for the following
reasons:-
2.1 Both COSATU and the SA Communist Party do not derive their existence from the ANC Constitution as is the case with the ANC Youth League.
2.2 COSATU and the SA Community Party owe their existence and mandate to a different set of circumstances when compared with the Youth League as set out in its own constitution.
2.3 COSATU and the SA Communist Party have their own constituencies and programmes and are accountable to their respective constituencies and not to the ANC whereas the main objective of the Youth League, in terms of its own constitution, is for the purpose of reinforcing and supporting the ANC.
2.4 Allies come together for common purposes and the realization of common goals. Otherwise, they remain independent in the true sense of the word. On the other hand, the ANC Youth League, in terms of its Constitution, owes its existence to the ANC and exists for the sole benefit of the ANC.
3. Consequently, the NDC is of the view that the Youth League and the ANC's alliance partners are not in the same relationship with the ANC.
4. As such, any comparison as to how the ANC relates to the Youth League and its alliance partners, to determine consistency, is misplaced.
5. In any event, the NDC is of the view that any value judgment about consistency or inconsistency can only be made over a period of time and after evaluating a number of events. Other than a reference to one incident concerning COSATU, the respondent has not provided any evidence of incidents over a period of time to enable the NDC or any reasonable observer to make a finding of inconsistency on the part of the ANC.
N6. Respondent's argument that the ANC Youth League has traditionally been militant and therefore the conduct of the current leadership should not be judged differently
1. The NDC agrees with this proposition and does not believe that the current ANC Youth League administration should act or be judged any differently from previous administrations.
2. The common denominator is that the ANC, for most part of its existence since 1912, has had a Code of Conduct to regulate the conduct of its members.
3. Comrade Mandela testified about the Potato Boycott in 1959 and that the militancy of the Youth League at the time irked the senior leadership of the ANC but the Youth League was not disciplined. In the NDC's view, this evidence is insufficient to make any deduction of inconsistency on the part of the ANC.
4. In the view of the NDC, the distinction whether to discipline or not lies in a fine line or threshold between militancy and robust expression on the one hand and ill- discipline on the other. Once that line has been crossed or threshold breached, one could expect to be disciplined. .
5. Nothing illustrates this distinction better than the evidence of comrade Rapu Molekane. He testified that in the early 1990s the ANC Youth League initiated a policy discussion on the environment which it took through the structures of the Youth League and then to the ANC. It took some time to get the issue on the ANC agenda and the Youth League had to lobby extensively for the ANC to eventually consider the proposal. In the NDC's view it is noteworthy that other than lobbying, no other action was taken.
6. All members of the ANC, without exception, are subject to the ANC Constitution and its Code of Conduct. In the NDC's view, ill- discipline, in the guise of militancy and robust expression, cannot
exempt any member from being sanctioned nor can it be a licence for reckless conduct.
N7. Respondent's argument in respect of Charge 1 that he was not comparing Presidents Mbeki and Zuma but was elaborating on the Youth League's statement
1. The respondent admitted that he uttered the words as alleged in the Charge. Consequently, he had a duty to explain his utterances.
2. The complainant's case was that the respondent was comparing Presidents Mbeki and Zuma and that the respondent was using the name of President Thabo Mbeki to justify the existence of a vacuum and was therefore having a ‘dig' at or was critical of the current leadership.
3. Comrade Mantashe testified that the statement of the Youth League was false because the AU and SADC were now more active than ever and the ANC received constant briefings on the situation in Libya and the Ivory Coast. He testified further that the ANC Youth League was represented at these briefings.
4. Comrade Sexwale testified that the respondent's utterances could not be dividing the ANC if fingers were being pointed at the imperialists who were dividing Africa. He also stated that the respondent, in his utterances, was making an appeal for the African agenda to be prioritized and that the comparison between Presidents Mbeki and Zuma was introduced into the media by journalists and analysts and not by the respondent.
5. The respondent's defence was a combination of his comments on the Youth League statement and his explanation for the utterances, all of which can be stated as follows:-
5.1 The Youth League statement was the collective view of the ANC Youth League;
5.2 The Youth League statement was read at the press conference by the SG of the Youth League and not by the respondent;
5.3 The respondent answered some of the questions asked by journalists;
5.4 Any NEC member could comment on the Youth League statement;
5.5 If the respondent had said something out of line, other members of the NEC could have corrected him and clarified the statement;
5.6 The Youth League statement was critical of the AU and the SADC;
5.7 The respondent's utterance was not a ‘dig' at comrade Zuma;
5.8 The respondent's utterances highlighted the fact that former President Mbeki was very passionate about Africa;
5.9 The respondent's utterances praised the role that comrade Mbeki played because it was the tradition in the ANC to celebrate leaders.
5.10 The respondent's utterances were an attempt to expand on the Youth League statement.
6. The NDC's evaluation of the evidence and these defences is as follows:-
6.1 There is a difference between the Youth League as an institution and the respondent as an individual. In the same way there is a distinction between the Youth League statement and the respondent's utterances. The NEC of the Youth League was not being charged for its statement. It was the respondent who has been charged for his utterances.
6.2 Consequently, the respondent's defences under 5.1, 5.2 and 5.6 relate to the Youth League and do not afford a defence to the respondent.
6.3 The defence under 5.3 reinforces the decision of the ANC to charge the respondent in his personal capacity for his utterances and does not afford a defence to the respondent.
6.4 The defences under 5.4 and 5.5 reinforce the decision of the ANC to charge the respondent in his personal capacity for his utterances and do not afford a defence to the respondent. Moreover, the respondent did not call any member of the NEC of the Youth League as a witness to corroborate these defences.
6.5 The NDC had to consider the following remaining defences of the respondent as an explanation for his utterances:-
6.5.1 his utterances were not a ‘dig' at President Zuma (5.7);
6.5.2 his utterances highlighted the fact that former President Mbeki was very passionate about Africa (5.8);
6.5.3 his utterances praised the role that President Mbeki played because it was the tradition in the ANC to celebrate leaders (5.9); and
6.5.4 his utterances were an attempt to expand on the Youth League statement (5.10).
7. Under cross-examination, the respondent testified that:-
7.1 The ANC and President Zuma represented the Africa agenda well.
7.2 It was the SADC and AU which no longer made the African agenda a priority.
7.3 President Zuma and the ANC were trying their very best to ensure that the AU and SADC prioritized the African agenda.
7.4 The ANC and President Zuma were not getting enough support from the other member states of the AU and SADC.
7.5 The situation in Libya and the Ivory Coast provided an opportunity for the imperialists to be tempted to re-colonise Africa.
7.6 During the time of President Mbeki the AU and SADC prioritized the African agenda because President Mbeki led African forces to oppose the attack on Iraq.
7.7 On the Libyan situation, it was the Youth League's view that if President Mbeki was still part of the SADC and AU, he would have persuaded those structures to act differently.
7.8 It was the observation of the Youth League that since the departure of President Mbeki there was a decline in anti-
imperialist and anti-colonialist decisions by the AU and the SADC.
7.9 The current position of the AU and SADC and the departure of President Mbeki was purely coincidental.
7.10 South Africa was playing its role in influencing the AU and SADC towards its own vision.
7.11 The Youth League did not hold the leaders of the AU and SADC in the same esteem as President Mbeki because the AU and the SADC have lowered their guard and provided an opportunity for the imperialists to re-colonise Africa.
7.12 In the case of Libya there may have been factors at play which prevented South Africa from influencing the AU.
7.13 Save for the situation in Egypt, the continent was relatively stable.
8. Comrade Sexwale's evidence is at variance with the respondent's explanation. Whereas the respondent's apportions blame to the AU and the SADC for the relegation of the African agenda, comrade Sexwale attributes the decline to imperialists and colonisers.
9. When comparing the evidence of the respondent with his remaining defences referred to in 6.5 above, the NDC is of the view that:-
9.1 The respondent's evidence does not afford any defence for his utterances.
9.2 Save for a bald denial that he was having a ‘dig' at President Zuma, the respondent did not challenge the evidence of comrade Mantashe.
10. The NDC also deduced the following differences between the Youth League statement and the respondent's evidence:-
10.1 Whilst the Youth League statement attributed the decline in the AU and SADC directly to the departure of President Thabo Mbeki, the respondent attributed the decline to the lack of co-operation between other member states in the AU and SADC with the ANC and President Zuma.
10.2 Whilst the Youth League statement attributed the vacuum in African leadership directly to the departure of President Mbeki, the respondent attributed the vacuum to the SADC and the AU;
10.3 Whilst the Youth League statement expressed concern about the vacuum in the ideological and political leadership in Africa, the respondent testified that save for the situation in Egypt, the continent was relatively stable.
10.4 Whilst the Youth League statement pointed to the manner in which the situation in the Ivory Coast and Libya was handled as justification for its conclusion that there was a vacuum in African leadership since the departure of President Mbeki, the respondent testified that in the case of Libya there may have been factors at play which prevented South Africa from influencing the AU.
11. The respondent testified that when elaborating on the statement ‘you cannot just read the statement. You have to give more facts as to what you mean.''
12. The respondent was in a position to do so because he was party to the decision of the Youth League and the formulation of the statement.
13. The Youth League attributed all the conclusions in its statement to the departure of President Thabo Mbeki.
14. In terms of the respondent's own evidence, his elaboration would have required him to provide the facts and background to explain how
the Youth League had come to the conclusion that the departure of President Mbeki resulted in the vacuum and decline in the African agenda.
15. Given that the respondent was elaborating on the Youth League statement, as he contended, then the inescapable conclusion is that the respondent accepted and associated himself with the Youth League statement that attributed the existence of a vacuum and the decline in the African agenda directly to the departure of President Mbeki. It was this statement the respondent was elaborating on.
16. Any other explanation would not been an elaboration of the statement but would have been the personal view of the respondent.
17. At its congress in June 2011 the Youth League noted that there was a re-emergence of a tendency in the ANC of associating with
imperialists on foreign policy decisions and called on the ANC and South Africa to re-assert its leadership role in the African continent.
18. It is clear from the Youth League declaration at its Congress that blame was being apportioned to the ANC and South Africa.
19. The NDC has also noted that the declaration of the Youth League Congress did not link its criticism of the ANC and South Africa to the departure of President Mbeki. This appeared for the first time in the statement of the NEC of the Youth League on 31 July 2011.
20. The respondent was a party to both the Youth League Congress declaration and the NEC statement but has not offered any explanation for the variation nor did he call any other member of the NEC of the Youth League as a witness to offer an explanation.
21. The NDC also took judicial notice of the objective fact that comrade Mbeki resigned as President of South Africa in June 2008 and the respondent's utterances were made in July 2011 - more than 3 years after the fact of comrade Mbeki's departure.
22. Based on the above evidence, the NDC is of the view that:-
22.1 If the respondent was, in fact, referring to the SADC and the AU, he would and should have said so in his utterances.
22.2 The respondent's explanation that he was referring to the SADC and AU also does not assist him because on the one hand he seeks to attribute fault to the lack of co-operation by SADC and AU member states and on the other hand he states that, save for Egypt, the continent was relatively stable.
22.3 In essence, the respondent's explanation is conflictual in nature and gives rise to two diametrically opposed positions viz. that there was a vacuum (because of non co-operation by other member states of the SADC and the AU) and that at the same time there was no vacuum (because the ANC and the South African government were performing well and the continent was relatively stable).
22.4 Even if the respondent did not believe that the continent was relatively stable and that there was still a vacuum in African leadership, then his failure to say so in his elaboration of the Youth League statement can be construed to mean that he did not believe that to be the case.
22.5 The respondent has not adduced any evidence to support his contention that the member states of the AU and the SADC were not co-operating with the ANC and South Africa.
22.6 The respondent was being untruthful and has tailored his evidence to escape liability. On his own evidence, the respondent did not have personal knowledge of the inner working of the AU and the SADC. Consequently, it is unlikely that he could have made such far reaching conclusions about the situation in Africa as he did.
22.7 Reading the respondent's utterance in context and having regard to the evidence, particularly the respondent's own evidence, the only inference that can be drawn, on a balance of probabilities, is that the respondent, by implication, was making a comparison between the performance of President Mbeki on the one hand and President Motlanthe and, more particularly, President Zuma on the other.
22.8 The NDC has taken judicial notice of the undermentioned facts which are admitted in evidence as proved facts:-
22.8.1 that comrades Mbeki and Motlanthe were past Presidents and comrade Zuma is currently the President of South Africa;
22.8.2 that comrades Mbeki was and comrade Zuma is the President of the ANC;
22.8.3 that the respondent admitted uttering the words in the Charge; and
22.8.4 that the institutions of the AU and the SADC were in existence when comrade Mbeki was President and still exist (when comrade Zuma is President).
22.9 The inference drawn in Clause 22.7 above is consistent with all the proved facts.
22.10 The respondent's evidence that the Youth League (and not him) suspected that the ANC and the South African government had relegated the African agenda, when considered against the objective fact that President Mbeki had resigned three years ago in June 2008, is further support for the inference in Clause 22.7 above that the respondent was in fact comparing different administrations and leaders of the ANC and ANC-led government.
22.11 The institutions of the SADC and the AU were in existence during the time of leadership of comrade Mbeki and are still in existence. Against this constant factor, the respondent's use of words such as "in the past" and "is generally no longer a priority" is indicative of a temporal analysis and comparison between the past era of comrade Mbeki and the present era of comrade Zuma.
22.12 The fact that comrade Motlanthe and President Zuma are not mentioned by name in the respondent's utterances is immaterial and does not detract from the fact that the respondent was comparing different administrations.
22.13 In the context of the respondent's utterances, reference to President Zuma is apparent by innuendo and supports the inference in Clause 22.7 above.
22.14 On the respondent's own evidence about the performance of the ANC, South African government, SADC and the AU, the inference in Clause 22.7 excludes every other reasonable inference that could have been drawn from the respondent's utterances.
N8. Respondent's argument in respect of charge 2 that:-
8.1 the Charge is fatally defective;
8.2 the Youth League was lobbying support for its position on Botswana;
8.3 the respondent was responding to questions and amplifying the Youth League statement; and
8.4 the respondent was acting in a representative capacity and therefore could not be held personally liable.
1. The NDC ruled in the application to quash the Charges that defects in the Charge could be cured by evidence and that an evaluation whether the Charge was still fatally defective could be made after hearing all the evidence and argument.
2. Having re-considered the matter in the light of all the evidence, the NDC finds that the Charge is valid and does disclose an offence.
3. Condensing 8.2, 8.3 and 8.4, the remaining issues to be determined are whether the respondent's utterances as set out in (i), (ii) and (iii) in the Charge contravened Rule 25.5 (c) of the ANC Constitution and whether the respondent could be held personally liable.
4. In order to determine the above issues and the respondent's defences, the NDC had to first consider the Youth League's statement on Botswana.
Evaluation of Youth League's statement on Botswana
1. The NEC of the Youth League issued a public statement on 31 July 2011 that it would establish a Botswana Command Team which would work towards uniting all opposition forces in Botswana to oppose the puppet regime of Botswana led by the Botswana Democratic Party.
2. The Youth League's decision to establish a Botswana Command Team was premised on its belief that the BDP-led Botswana was a foot stool of imperialism, was a security threat to Africa and was under constant puppetry of the United States.
3. According to the respondent, the Youth League honestly believed that it was acting within ANC policy.
4. The SG of the ANC testified that the Youth League statement was a total deviation from ANC policy and he publicly rebuked the Youth League.
5. It is axiomatic that:-
5.1 Clause 10 of the Freedom Charter which deals with respect for the sovereignty of states is still very much part of ANC policy; and
5.2 The ANC's resolution on Party-to-Party relations is applicable to Botswana and is binding on the ANC Youth League.
6. Comrade Mbete testified in the Shivambu disciplinary inquiry that:-
6.1 The Youth League statement was an affront to ANC policy and was divisive because it conveyed the notion that there were some ANC leaders who took different positions from others;
6.2 The Youth League statement would have a negative impact on the repute and integrity of the ANC and would create confusion and concern among the people;
6.3 The policies of the Youth League had to be within the confines of ANC policy; and
6.4 Where the Youth League expressed views publicly which were at variance with ANC policy, such conduct was ill-disciplined and brought the ANC into disrepute.
7. On the issue of whether the Youth League statement and the respondent's utterances were contrary to ANC policy, comrade Lindiwe Zulu contradicted herself in a material respect.
8. On the one hand comrade Zulu testified:-
8.1 That the Youth League statement created the impression that the ANC was going to interfere with a neighbour;
8.2 That the Youth League leadership should be disciplined because the statement could be seen as interfering with Botswana;
8.3 That the Youth League statement and the respondent's utterances were against the principles of the ANC; and
8.4 That the Youth League cannot have policies which are contrary to the policies of the ANC.
9. On the other hand comrade Zulu conceded that the respondent's utterance about the foreign policy of Botswana was not contrary to ANC policy and his utterances on the audiovisual clip did not suggest interference.
10. The NDC is of the view that this aspect of comrade Zulu's evidence (viz. that the utterances of the respondent was not contrary to ANC policy) should be rejected.
11. The Youth League at its Congress in June 2011 resolved that practical programmes to assist liberation and progressive movements in Southern Africa, who are not in power to win elections, particularly in Botswana and Swaziland, should be developed. This resolution was
referred to in the evidence as resolution 40 of the Youth League Congress.
12. The respondent testified that:-
12.1 The Youth League had the right to take its own decisions and announce those decisions;
12.2 When taking decisions the Youth League would announce that these polices would need to be processed internally in the ANC;
12.3 The existence of the International Relations subcommittee of the ANC did not take away the right of the Youth League to pronounce on international issues;
12.4 The Youth League's decision was part of ANC policy; and
12.5 Only resolutions and not statements of the Youth League are sent to the ANC.
13. When asked why the Youth League did not discuss its decision on Botswana before going public, the respondent offered two explanations. First, the Youth League would have done so at its scheduled meeting with the ANC on 8 August 2011. Second, the modus operandi of the Youth League was that once Conference had resolved, it was the duty of the NEC and NWC to put together an action plan and implement decisions of conference.
14. In the NDC's view:-
14.1 The Youth League's honest belief that it was acting within ANC policy was misplaced. The ANC's resolution on Party-to-Party relations is very specific. The NEC members of the Youth League, ought to have known of this resolution or, if they were not aware, should have taken steps to establish whether the proposed action of the Youth League was within the confines of ANC policy before acting in the manner that it did. The Youth League's failure to do so smacks of recklessness.
14.2 The Youth League deviated from its own procedure. The respondent testified that, generally, the Youth League's public announcement of its policy proposals would be accompanied by a qualification that such proposal will need to be processed internally in the ANC. In the case of its decision on Botswana, this was not done.
14.3 The nature of the intended action by the Youth League to introduce democratic change in Botswana fell within the purview of the ANC's resolution on Party-to-Party Relations and ought to have been referred to the ANC's subcommittee on International Relations. The Youth League was aware of the existence of this sub-committee and participated in it. This was not done and the respondent testified that the Youth League had a right to pronounce on international issues, despite the existence of the ANC's sub-committee on international relations.
14.4 The respondent's evidence was contradictory in a material respect.
14.5 On the one hand, the respondent indicated that he was aware that policy proposals had to be processed internally in the ANC. Consequently, it was the Youth League's intention to discuss its proposal with the ANC on 8 August when the parties were to meet.
14.6 On the other hand, the respondent testified that:-
14.6.1 Once the Youth League Congress had resolved, it was the duty of the NEC and NWC to put together an action and implement decisions of congress;
14.6.2 The Youth League's decision on Botswana was part of ANC Policy; and
14.6.3. The existence of the ANC's sub-committee on International Relations did not take away the right of the Youth League to pronounce on international issues.
14.7 If the intention of the Youth League was to discuss its statement with the ANC on 8th August, presumably to establish whether its decision on Botswana was within ANC policy, then it is not clear to the NDC why the Youth League went public on its position before that meeting. The only deduction the NDC can make, from the evidence, is that the Youth League had no intention of discussing its statement on Botswana with the ANC. In the NDC's view, this action is a further example of the Youth League's reckless conduct.
14.8 The Youth League statement went beyond the confines of youth issues when it announcement of its intention to unite all opposition forces in Botswana flew in the face of the ANC's resolution on Party-to-Party Relations.
14.9 Whilst the Youth League was free to contribute to the development of any aspect of ANC policy, it did not have the authority to make such public statements about the sovereign state of Botswana which were contrary to ANC policy and which were both damaging and derogatory.
14.10 Publication of its conclusions about Botswana was prejudicial to South Africa's bilateral relations with Botswana and the ANC and ANC-led government's standing in the region, on the continent and internationally. Such conduct, in the NDC's view, detracts from the respondent's defence that the Youth League was lobbying support for its position on Botswana.
15. Having considered the evidence, the NDC is of the view that the Youth League's position on Botswana was in fact a final decision that was in the process of being implemented. This conclusion of the NDC is supported by the respondent's utterance on the audiovisual clip (Exhibit JM 10) that a team was to be sent to Botswana or a team from Botswana would visit South Africa by the end of August. Such action, in the NDC's view, is tantamount to reckless conduct.
16. Comrade Lindiwe Zulu testified that the Youth League statement raised concerns internationally and that she had to explain ANC policy and the relationship between the Youth League and the ANC.
17. The NDC accepts the evidence of comrades Mantashe and Mbete that the Youth League's statement and its act of publicly announcing its position on Botswana was, in the circumstances, reckless and a deviation of ongoing ANC policy and procedure and rejects the evidence of the respondent that the Youth League statement was part of and within the parameters of ANC policy.
Evaluation of the respondent's role
1. It is the respondent who is being disciplined for his utterances and not the ANC Youth League for its statement.
2. The NDC had to decide whether the respondent's defence that he was acting in a representative capacity could be sustained.
3. The respondent went to great lengths to explain that the Youth League's intention was not to provide military support to the opposition forces in Botswana but to provide material support and help the opposition forces to overcome the present regime by democratic means.
4. The respondent was required to explain his utterances in the Charge which were alleged to be reckless, a deviation of ongoing ANC policy and which brought or had the potential to bring the ANC into disrepute.
5. The respondent admitted uttering the allegations in (i) and (ii) in the Charge and stated that these excerpts were intended to support the allegation in (iii) in the Charge viz. to explain why the Youth League had decided to establish a Botswana Command Team.
6. But the respondent did not provide any additional explanation beyond stating that he uttered these words to support the Youth League's decision to establish a Botswana Command Team.
7. Nor did the respondent call any NEC member of the Youth League to testify whether his utterances in (i) (‘so we need a progressive government in Botswana' ) and in (ii) (‘we are not going to sit with neighbours that conduct themselves like that') were in fact part of the discussions at the NEC meeting of the Youth League which gave rise to the decision to establish a Botswana Command Team.
8. In the absence of providing any explanation or calling available witnesses, the only deduction the NDC could make was that the respondent was expressing a personal view.
9. It is an established rule that where a representative, be it a spokesperson, Chief Executive Officer, President, employee or agent expresses his or her personal view as being the view of the organization which he or she purports to represent, that person, by conduct, acts outside his or her mandate and consequently attracts personal liability.
10. The allegation in (iii) was not uttered by the respondent, but appeared in the Youth League statement.
11. The respondent, in his full response on the audiovisual clip (Exhibit JM 10), referred to a team that was to be sent to Botswana or a team from Botswana being invited to South Africa by the end of August and also uttered the words, "topple" and "plan to put somebody down". These utterances do not appear in the Youth League statement. Moreover, reference to a team can only be understood to mean a Command Team which is referred to in the Youth League statement.
12. Comrade Sexwale testified that the respondent was merely articulating a threat that already existed in Botswana since 1991 after the US considered establishing a military base in that country.
13. Comrade Sexwale's evidence, however, does not afford any support to the respondent's defence as stated in 5 above.
14. In the NDC's view, the utterances in (i) and (ii) of the Charge are very serious allegations against the sovereign state of Botswana.
15. Furthermore, amplification of a statement, in the ordinary sense and according to the respondent's own evidence, means giving more facts and background information about what is contained in the statement.
16. The respondent was in a position to do so because he was party to the decision of the Youth League to establish a Botswana Command Team.
17. On the respondent's own evidence, he had no personal knowledge of the inner workings of the AU and SADC. Consequently, in the NDC's view, the respondent, including the Youth League, did not have the competence or authority to make such sweeping statements about Botswana was an act of recklessness.
18. In light of his limited knowledge, the respondent should have refrained from offering any elaboration of the Youth League statement.
19. By choosing to elaborate on the Youth League statement, in circumstances where there was no obligation upon him to do so and, on his own evidence, he was not sufficiently competent to do so, the NDC is of the view that the respondent acted recklessly with no regard for the consequences of his conduct.
20. Consequently, the NDC is of the view that the respondent's utterances per se against a sovereign state were reckless and baseless pronouncements which impacted negatively on South Africa's relations with Botswana, the SADC and the AU, brought the ANC, as the ruling party in South Africa, into disrepute and were in contravention of Clause 10 of the Freedom Charter and the ANC's resolution on Party-to-Party relations.
21. Although the utterance in (iii) in the Charge is taken from the Youth League statement, the respondent, in his full response on the audiovisual clip (Exhibit JM 10), did talk about a team that was to be established; that the first interaction would be by the end of August; that material support will be provided to all opposition forces and that the support was intended to bring about change in Botswana by democratic means.
22. The NDC is of the view that, save for not using the word "command", the respondent, in his full response on the audiovisual clip (Exhibit JM 10), articulated and associated himself with the allegation contained in (iii) in the Charge and went further than what was actually contained in the Youth League statement and in allegation (iii) in the Charge.
23. It was not the duty of the Chief National Presenter to extract an explanation from the respondent for his utterances which he was obliged to provide.
24. On the respondent's own evidence, there was no obligation upon him to say anything at the press conference. Moreover, if the respondent was advised to stay out of the spotlight because of his personal challenges, then it would have been logical for the respondent to have considered staying away from the press conference altogether. His decision to attend the press conference, in the NDC's view, defies logic and his credibility as a witness.
25. Furthermore, the respondent should have realized that his presence at the press conference would have defeated the very objective he was trying to avoid - exposure to the media.
26. The respondent is serving a second term as President of the Youth League and is a member of the NEC of the ANC.
27. As much as the Youth League is always seeking guidance from the ANC, the respondent, being a senior leader in the Youth League should have informed his colleagues that its position on Botswana was a deviation of ANC policy and procedure and was contrary to the ANC resolution on Party-to-Party relations and the Freedom Charter.
28. In the NDC's view, the respondent's failure to provide leadership and act responsibly in the circumstances AND his public utterance of a Youth League statement, which he knew ought to have known was not part of ANC policy, is tantamount to reckless conduct.
29. Consequently, the NDC is of the view that the respondent, in circumstances where there was no obligation upon him to do so, associated himself by conduct with the contents of the statement and is therefore personally liable for any consequences that could ensue from his act of publicly uttering excerpts from the contents of the Youth League statement which was not part of and within the parameters of ANC policy.
30. Furthermore, for the reasons set out in N1, N2 and N3 above, the NDC is of the view that the respondent attracted personal liability.
31. Consequently, the respondent's defence that he was acting in a representative capacity and merely amplifying the Youth League statement (which was contrary to ANC policy) cannot be sustained.
32. Even if it is to be assumed that the respondent acted in a representative capacity, then his utterances which expressed a personal view would make him personally liable.
33. In summary, the respondent's personal liability is founded on two acts of misconduct contemplated in Rule 25.5 (c) of the ANC
Constitution, both of which are a deviation of ongoing ANC policy and which had the effect of bringing the organisation into disrepute:-
33.1 his act of publicly uttering excerpts from the contents of the Youth League statement which was not part of and within the parameters of ANC policy;
33.2 his utterances, which do not appear in the Youth League Statement, expressed a personal view.
N9. Respondent's argument in respect of charge 3 that he wa referring to colonizers and the wars of dispossession and not to Whites
1. The NDC takes judicial notice of the historical fact that 87% of the land belongs to Whites and only 13% belonging to Blacks and that these inequities still persist.
2. Save for denying using the word, "Whites", the respondent admitted that he uttered the words as set out in the Charge.
3. The NDC had to decide who the respondent was referring to when he used the word, "they".
4. The respondent testified that he was called by a journalist from the Sunday Independent newspaper and since the publication of an article in that newspaper, the words "Whites are criminals" was attributed to him.
5. The Chief National Presenter did not call the journalist from the Sunday Independent as a witness.
6. After viewing the audiovisual clip of the respondent's utterance, the NDC was satisfied that the respondent did not use the word "Whites".
7. Comrade Saul testified that he was present at the rally and the respondent did not use the word "Whites" and was talking about the wars of dispossession in his speech.
8. Professor Nkondo testified that it was a fact that large tracks of land have been turned into game farms and that in his view the respondent was referring to the wars of dispossession. The complainant did not produce any evidence to counter this evidence.
9. Comrade Winnie Mandela testified that the struggle for land is still continuing. The NDC accepts this evidence as a fact.
10. Comrade Mantashe testified that the ANC accepted that the willing buyer-willing seller system had failed.
O. Evaluation of the evidence of comrade Tokyo Sexwale
1. Comrade Sexwale's evidence covered a range of issues, including opinion evidence on the legality of the Charges, conduct of NEC meetings, powers of the NEC, how disciplinary proceedings should be conducted, interpretation of the ANC Constitution, legal status of the National Officials, the foreign policy of the ANC and circumstances which warranted the recusal of NDC members. In addition comrade Sexwale testified on all the Charges faced by the respondent.
2. His evidence relating to the Charges has been considered elsewhere in this finding.
3. However, the NDC is of the view that the legal arguments advanced by comrade Sexwale should be assessed independently because of its wide-ranging nature.
4. The NDC has noted that the overwhelming number of the arguments were unsubstantiated statements and decried comrade Tokyo's knowledge of the ANC Constitution as an NEC member.
5. The salient arguments raised by comrade Sexwale are the following:-
5.1. The argument comrade Sexwale was ruled out of order at the NEC meeting
1. Comrade Sexwale testified that after he had established from the respondent that a rumour that he (the respondent) was charged with misconduct was true, he raised the matter at the NEC meeting and was ruled out of order on the grounds that the matter was sub judice.
2. He testified that the National chairperson, comrade Mbete who chaired the NEC at the time, albeit innocently, was wrong to do so.
3. Under cross-examination comrade Sexwale testified that the matter of disciplinary proceedings against the respondent was not on the agenda of the NEC meeting.
5.2 The argument that disciplinary proceedings should not be used to settle political scores as provided for in Rule 25.2 of the ANC Constitution
1. The NDC agrees that the ANC Constitution expressly prohibits the use of disciplinary proceedings to stifle debate, deny any member of his or her democratic right or be used to solve private problems.
2. Generally, whether such prohibitions are in play can be established from the Charge itself.
3. For instance, if a member is charged for an utterance he
or she never made or an act that he or she never committed but which is attributed to him or her in a charge, that allegation in itself should be sufficient for any disciplinary tribunal to be concerned about the legitimacy of the charge.
4. In terms of Rule 25.2 such disciplinary tribunal is obliged to satisfy itself that the conduct of the charged member (act or utterance) constitutes a violation of the ANC Constitution or an offence affecting the organization as expressly provided in Rule 25.2 of the Constitution.
5. In the present inquiry, save for denying that he uttered the words, "command" in reference to a Botswana command team in Charge 2 and "Whites" in Charge 3, the respondent admitted that he uttered the allegations in the Charges.
6. In the face of such formal admissions, there was no rational basis or need thereafter for the NDC to consider whether the disciplinary proceedings were instituted for any illegitimate purpose.
5.3 The argument that the NEC's authority was undermined
1. Comrade Sexwale's interpretation of Rule 12 of the ANC Constitution is that the National Officials had erred in not placing the Charges before the NEC for discussion because the NEC was the highest authoritative body in the ANC between National Conferences.
2. He testified that the institution of the disciplinary proceedings was irregular.
3. Under cross-examination comrade Sexwale conceded that there was no clause in the Constitution that made provision for the Charges to be placed before the NEC but went on to say that it would have been politically correct to have done so.
4. Notwithstanding the concession, the NDC is of the view that comrade Sexwale overlooked two aspects of Rule 12 of the ANC Constitution.
5. The first is that Rule 12.1 does decree the NEC to be the highest organ of the ANC between National Conferences - but this decree is subject to the provisions of the Constitution as stated in Rule 12.1 itself. In other words, the power contemplated is that where the Constitution is silent on a particular issue, the NEC is empowered to deliberate on and decide that particular issue.
6. The second aspect is that Rule 12.2 provides a range of powers to the NEC but makes no reference to disciplinary proceedings. The reason, in the NDC's view, is that Rule 25 of the Constitution is clear on the institution and conduct of disciplinary proceedings. Consequently, in terms of the proviso to Rule 12.1, there is no need for the NEC to make any pronouncement or even consider the issue of disciplinary proceedings against members where provision is made elsewhere in the ANC Constitution.
7. Based on these constitutional provisions, the authority of the NEC was not undermined because there was nothing irregular or unconstitutional in the institution of disciplinary proceedings against the respondent.
5.4 The argument that the NDC members were conflicted in terms of Rule 25(6)(f) and should have recused themselves
1. On 30 August 2011 the NDC pronounced on the substance of this allegation at the commencement of disciplinary proceedings against the respondent and does not intend issuing a second ruling.
2. In any event, a careful reading of Rule 25.6(f) of the Constitution expressly indicates that the Rule is designed to uphold a rule of natural justice to ensure fairness by precluding a member of a disciplinary committee from being party to a decision to institute disciplinary proceedings. In other words, one cannot be a referee (DC member) and player (initiator, complainant or prosecutor in DC proceedings) in the same case.
3. In cross-examination it emerged that none of the NDC members were National Officials and, conversely, none of the National Officials were appointed as members of the NDC as provided for in Rule 25.6(a) of the ANC Constitution.
5.5 The argument that the ANC Youth League enjoyed more autonomy than the ANC Womens' League and the ANC Veterans League
1. Whilst the ANC Constitution does devote two extra sub-clauses to the ANC Youth League, there is nothing in the ANC Constitution to indicate to a reasonable reader that the Youth League is more autonomous or more important than the Womens' League or the Veterans League.
2. All three autonomous bodies are entitled to have their own constitution, rules and regulations; all three are implored to make a full and rich contribution to the work of the ANC and all three, without distinction, are regarded as an integral part of the overall structure of the ANC.
5.6 The argument that the respondent would still maintain his position in the Youth League even if expelled from the ANC
This argument is dealt with more fully under Clause R below.
5.7 The argument that it is uncertain whether the National Officials were quorate when deciding to institute disciplinary proceedings against the respondent
1. It is common cause that the President, Deputy President, Chairperson, Treasurer, Secretary General and Deputy Secretary General are the National Officials and that in terms of Rule 25.6(a) the national officers are empowered to refer any violation or misconduct directly to the NDC for determination as is presently the case.
2. Comrade Mantashe testified that the National Officials were unanimous in the decision to institute disciplinary proceedings against the members of the NEC of the Youth League including the respondent.
3. Comrade Sexwale testified that only four of the National Officials were present when the decision was taken. This argument cannot be sustained on the following four grounds:-
3.1 it is hearsay evidence;
3.2 even if four National Officials took the decision, it is not clear how the issue of a quorum is relevant;
3.3 the best evidence available on the matter is that of comrade Mantashe who is a National Official and
who was present at the meeting when the decision was taken; and
3.4 it was open to the respondent to call any National Official as a witness to counter the direct evidence of comrade Mantashe or corroborate the hearsay evidence of comrade Sexwale. This was not done.
5.8 The argument that the formulation of the Charges did not make sense and the Charges were moving from the mundane to the ridiculous
1. Comrade Sexwale's argument in this regard was that the utterances should be viewed in context i.e. it should be considered in light of all the circumstances.
2. With regard to the respondent's utterances in Charges 1 and 2, comrade Sexwale's analysis was that "context", in his view meant that at the ANC Youth League 24th Congress in June 2011 over 5 000 had resolved on these matters.
Thereafter the NWC members and 6 NEC members were tasked with executing this mandate.
3. In terms of this "context", the singling out of the respondent for his utterances was unfair, smacked of a clear agenda and moved from the mundane to the ridiculous.
4. In the NDC's view, this argument is wrong on at least the following four grounds:-
4.1 If the Congress had resolved in a manner that was in contravention of ANC policy or the ANC Constitution, there was no obligation on the NWC and NEC of the Youth League or the respondent to execute an unreasonable or unlawful mandate. Consequently, there was no obligation, as suggested by comrade Sexwale, to execute;
4.2 The ANC Constitution provides for certain utterances and actions by individuals, in contravention of the Constitution, to constitute acts of misconduct for which they can be charged;
4.3 The respondent had previously launched an application to quash the Charges on the grounds, inter alia, that the Charges did not disclose an offence and were not properly formulated. That application was dismissed and reasons were provided; and
4.4 Far from being mundane and ridiculous, senior leaders of the ANC, including the National Chairperson, Secretary General and foreign policy adviser to the President, presented cogent evidence on the Charges against the respondent.
5.9 The argument that one cannot charge a spokesperson who speaks on behalf of an autonomous body
1. In the NDC's view, the answer is in two parts.
2. First, the ANC Youth League has a degree of organizational autonomy. It is not independent but is an integral part of the ANC as determined in this finding.
3. Second, if a spokesperson:-
3.1 articulates or amplifies a statement of an organization which is unreasonable or unlawful; or
3.2 enables a reasonable inference to be drawn, by innuendo or implication, from what he or she had said or did not say; or
3.3 if the spokesperson expresses a personal view as purportedly being the view of the organization then that spokesperson would be acting outside his or her mandate; would attract personal liability by his or her conduct and consequently could be charged for misconduct in his or her personal capacity.
P. Evaluation of the evidence of comrade Winnie Mandela
1. The evidence of comrade Winnie Mandela has been considered in other parts of this finding.
2. However, the NDC is of the view that the following arguments advanced by comrade Mandela merit attention:
2.1. The argument that it was contradictory to charge the respondent for resolutions taken at the Youth League congress
1. In summary, the NDC points out that the respondent is not being charged for resolutions taken at the Youth League congress in June 2011 but for his utterances at a press conference of the NEC of the Youth League which took place on 31 July 2011.
2. This misunderstanding on the part of comrade Winnie Mandela arose because it was put to her by the respondent's representative that the respondent was being charged for
resolutions taken at the Youth League congress which was not the case.
3. With regard to the respondent's utterances on 31 July 2011, the NDC's evaluation pertaining to Charges 1 and 2 have been dealt with exhaustively in other parts of this finding, particularly under M1, M7 and M8 above.
2.2 The argument that there is no organ or structure as ‘National Officials' in the ANC Constitution
This argument has been dealt with under Clause L above.
2.3 The point that comrade Winnie Mandela was labelled as "unprincipled" for testifying at this hearing
1. Annexure JM 13 is an article titled "Zuma slams Malema's supporters" and appeared in the Sunday Independent on 10 October 2011 whilst the current disciplinary inquiry was underway.
2. At that stage the witnesses who were to testify on behalf of the respondent were not known.
3. According to an unnamed source President Zuma allegedly spoke about the disciplinary proceedings against the respondent and allegedly made reference to people who do not want charges against their friends.
4. The article also made reference to a statement by comrade Winnie Mandela that no other Youth League leader has gone through what Malema (the respondent) had gone through.
5. Comrade Winnie Mandela stated that the article could be interpreted to imply that she was an unprincipled person and member of the ANC. In terms of this understanding, comrade Mandela felt slighted.
6. Comrade Winnie Mandela testified that she honestly believed that the President was misquoted.
7. The NDC could reject this argument as hearsay evidence and therefore inadmissible. It could also reject this argument on the grounds that there was no objective basis for comrade Winnie Mandela to feel slighted since, despite press reports, it was only on 26th October 2011 that it transpired that comrade Winnie Mandela was to be called as a witness at this inquiry.
8. However, the NDC is of the view that this issue highlights a more serious concern viz. the damage that leaked information could potentially cause to the integrity of the ANC and leaders of the ANC. This issue also reiterates and reinforces the need for a higher level of discipline within the ANC.
9. For its part, the NDC wishes to state that every member of the ANC should feel free to testify in disciplinary
proceedings, without fear of being labelled.
Q. Ruling on the admissibility of the evidence of comrades Tokyo Sexwale and Winnie Mandela
1. The NDC agrees with the complainant that if the rules of evidence relating to opinion witnesses were applied, both comrades Tokyo Sexwale and Winnie Mandela would not qualify as expert witnesses.
2. However, as stated on 2 September 2011, in its finding on the respondent's application to quash the charges, the disciplinary hearing is no more than an ordinary internal disciplinary process. The NDC is not a court of law but a quasi-judicial institution of the ANC. It has its own rules and operates on the principles of equity and fairness.
3. As far as it is reasonably possible, the NDC would prefer to make its finding on the evidence before it.
4. Consequently, the evidence of comrades Tokyo Sexwale and Winnie Mandela will be considered in terms of the same standard as that of all the other witnesses who testified at this disciplinary inquiry and not as opinion evidence.
R. Finding by NDC
As a prelude to the finding on the specific Charges, the NDC finds that there is a difference between the Youth League as an institution and the respondent as an individual. In the same way there is a distinction between the Youth League statement and the respondent's utterances. The NEC of the Youth League was not charged for its statement. It was the respondent who is being charged for his utterances.
R1. Charge 1
The NDC finds that:-
1. The onus was on the respondent to explain the utterances which he admitted. Save for a bald denial that he was having a ‘dig' at President Zuma, the respondent has failed to discharge this onus and provide any reasonable explanation for his utterances.
2. Given that the respondent was elaborating on the Youth League statement, as he contended, then the inescapable conclusion is that the respondent accepted and associated himself with the Youth League statement which attributed the existence of a vacuum and the decline in the African agenda directly to the departure of President Mbeki. It is this
statement that the respondent was elaborating on.
3. The respondent's evidence that the Youth League (and not him) suspected that the ANC and the South African government had relegated the African agenda, when considered against the objective fact that President Mbeki had resigned three years ago in June
2008, is further support for the inference that the respondent was
in fact negatively comparing different administrations and leaders of the ANC and ANC-led government.
4. The fact that comrade Motlanthe and President Zuma are not mentioned by name in the respondent's utterances is immaterial and does not detract from the conclusion that the respondent was comparing different administrations. In the context of the respondent's utterances, reference to President Zuma is apparent by innuendo and supports the inference above.
5. Comparison between different eras of leadership in the ANC's history by itself is not an act of misconduct and in fact is part of our culture of democratic debate. However, the suggestion that the administrations after comrade Mbeki have relegated or abandoned the African agenda and thereby aided and abetted the imperialist agenda that seeks to recolonise Africa is untrue and portrays the ANC government and its
leadership, under President Zuma, in a negative light and therefore has
the potential to sow division and disunity.
6. On the respondent's own evidence about the performance of the ANC, South African government, SADC and the AU, the inference above excludes every other reasonable inference that could have been drawn from the respondent's utterances.
7. The inference drawn above is consistent with all the proved facts.
8. The respondent was personally liable for his utterances and the NDC rejects the defence of the respondent that he was acting in a representative capacity or on behalf on the collective on the following grounds:-
8.1 It would normally be the responsibility of the respondent, as he testified, to read the Youth League statement in his capacity as President of the Youth League. However, on this particular occasion he was advised by the NEC of the Youth League not to read the press statement because the spotlight was on him and he could be questioned on issues relating to his family trust. For that reason the SG was mandated to read the Youth League press statement.
8.2 Even if the respondent did elect to attend the press conference, he was under no obligation to answer any questions. He attracted personal liability when he voluntarily chose to answer questions at the press conference to elaborate on the Youth League statement.
8.3 By agreeing to be bound by the decision of the collective, the respondent by conduct, associated himself with the decision of the collective.
8.4 If that decision is subsequently found to be unlawful (i.e. it constitutes a contravention of ANC policy or the ANC's Code of Conduct) or unreasonable (i.e. it could expose the member of the collective to liability for misconduct for articulating the decision of the collective) then the respondent, by doing something or saying something in furtherance of the collective decision, attracts personal liability.
9. The respondent's testimony that he blamed the AU and SADC for the decline in the African agenda and not the current ANC government and leadership under President Zuma, was an attempt to escape liability.
10. Having regard to the evidence of comrade Mantashe and the respondent's own evidence, the respondent's behaviour was directed at the leadership of the ANC and as such could potentially provoke serious divisions or lead to a breakdown of unity in the ANC.
11. The complainant has proved, on a balance of probabilities that the respondent's behaviour constituted an act of misconduct as contemplated in Rule 25.5(i) of the ANC Constitution.
12. The causal link between the respondent's behavior and the misconduct contemplated in Rule 25.5 (i) of the ANC Constitution has been established, by implication and on a balance of probabilities.
13. The respondent is found guilty as charged.
R2. Charge 2
The NDC finds that:-
1. The respondent as a member of the NEC of the ANC should or ought to have known that the Youth League statement on Botswana was not part of or within the parameters of ANC policy.
2. The respondent did not provide any additional explanation beyond stating that he uttered the words alleged in the Charge to support the Youth League's decision to establish a Botswana Command Team.
3. The respondent's utterances per se against a sovereign state were reckless and baseless pronouncements and impacted negatively on South Africa's relations with Botswana, the SADC and the AU, brought the ANC, as a liberation movement and the ruling party in South Africa, into disrepute and were in conflict with ANC policies and the ANC's resolution on Party-to-Party relations as adopted at the 52nd National Conference in Polokwane.
4. The respondent's utterances on the audiovisual clip (that was produced in evidence) that a team was to be sent to Botswana or a team from Botswana would visit South Africa by the end of August went beyond the Youth League statement. It is indicative of a final decision that was in the process of being implemented and was his personal view.
5. In the absence of providing satisfactory explanation, the only deduction the NDC could make, either directly or through witnesses, was that the respondent was expressing a personal view.
6. By his conduct the respondent associated himself with the contents of the Youth League statement.
7. By voluntarily choosing to amplify the Youth League statement, which was not part of or within the parameters of ANC policy and where there was no obligation upon him to do so, the respondent acted recklessly and in contravention of ANC policy and the ANC's Code of Conduct.
8. Even if it is to be assumed that the respondent acted in a representative capacity, then his utterances (which expressed a personal view) would make him personally liable.
9. The respondent's personal liability is founded on two acts of misconduct
contemplated in Rule 25.5 (c) of the ANC Constitution, both of which are a deviation of ongoing ANC policy and which had the effect of bringing the organisation into disrepute:-
9.1 his act of publicly uttering excerpts from the contents of the Youth League statement which was not part of and within the parameters of ANC policy;
9.2 his utterances, which do not appear in and go beyond the Youth League statement, expressed a personal view and was in conflict with ANC policy.
10. Having regard to the evidence of comrades Mbete and Mantashe, the
audiovisual clip and the respondent's own evidence, the complainant has proved:-
10.1 that the respondent's utterances were reckless and a deviation of ongoing ANC policy;
10.2 that the respondent brought the ANC into disrepute; and
10.3 that the respondent's behaviour constituted misconduct as provided for in the ANC Constitution.
11. The complainant has proved its case on a balance of probabilities and the causal link between the misconduct of the respondent and the contravention set out in Rule 25.5 ( c ) of the ANC Constitution has been established.
12. The respondent is found guilty as charged.
R3. Charge 3
The NDC finds that:-
1. After evaluating all the evidence, the complainant has not proved its case on a balance of probabilities.
2. The respondent is found not guilty on this Charge.
3. The evidence of the complainant does not support the alternative charge of bringing the ANC into disrepute as contemplated in Rule 25.5 (c) of the ANC Constitution and the respondent is accordingly found not guilty on the alternative Charge.
S. Impact of the ANC disciplinary proceedings on membership of the ANC Youth League
1. Comrade Sexwale advanced the argument that the respondent would still maintain his position in the Youth League even if expelled from the ANC.
2. His submission is based on Rules 7.4. and 7.5 of the ANC Constitution which provide, inter alia, that the Youth League will function as an autonomous body and that members of the ANC Youth League over the age of 18 are expected to play a full part in the general political life of the ANC.
3. The implication of this argument, as understood by the NDC, is that in terms of the ANC Constitution, members of the Youth League do not necessarily have to become members of the ANC.
4. Consequently, it would follow, according to this argument, that if a Youth League member is a member of the ANC, the outcome of disciplinary proceedings against that member in his or her capacity as an ANC member would not affect that member's membership of the Youth League.
5. The NDC is of the view that this argument is untenable for the following reasons:-
5.1 The issue of the Youth League's autonomy has been dealt with in this finding and the NDC's conclusion was that whilst the Youth League enjoys a degree of organisational independence, it is not independent of the ANC.
5.2 The Youth League Constitution specifically provides in Article H that Youth League members over the age of 18 are "obliged to join the ANC".
5.3 It follows that a Youth League member over 18 years of age will not be permitted to remain in the Youth League unless he or she becomes a member of the ANC.
5.4 This positive obligation to join the ANC is reinforced in the Preamble of the Youth League Constitution which provides that the ANC Youth League derives its existence from the Constitution of the ANC and exists as a mass youth formation of the ANC.
5.5 Furthermore, Article 11 of the Code of Conduct of the Youth League, set out in Schedule A of the ANC Youth League Constitution provides:-
"11.1 A disciplinary proceeding of the Youth League may not interfere with a person's rights and duties as a member of the ANC, unless such rights or duties are exercised in an ex-officio capacity on behalf of the Youth League.
11.2. A person, who has been found guilty by an ANC disciplinary proceeding resulting in the imposition of the penalties of suspension, temporary/forfeiture of membership rights or expulsion, such penalties shall have the same application in all structures of the ANC Youth League."
5.6 The provisions of Article 11 above explicitly postulate two outcomes.
5.7 The first is that the outcome of disciplinary proceedings conducted by the Youth League against any of its members will not impact on that member's rights and duties as a member of the ANC. The only exception is where that member represents the Youth League in an ex-officio capacity in which event the Youth League may exercise its right of deployment of that member by removing him or her and nominating another member in his or her stead.
5.8 This means that the outcome of disciplinary proceedings within the Youth League will not affect that person's membership of the ANC.
5.9 However, the converse position set out in 11.2, subjects all member of the ANC Youth League to be bound by the outcome of ANC disciplinary proceedings.
5.10 In other words, it is not a defence for a Youth League member charged by the ANC to raise the argument that a sanction imposed by an ANC disciplinary committee would not affect his or her status as a member of the Youth League.
5.11 The ANC Youth League, by express provision in its Constitution, has subjected its members to and has undertaken to respect the outcome of ANC disciplinary proceedings against ANC members who are also Youth League members.
6. Consequently, a Youth League member, by agreeing to be bound by the provisions of Article 11.2, has consented to the
jurisdiction of the ANC over his or her membership of the Youth League.
7. It also means that the Youth League itself shall be under a constitutional obligation to give effect to any decision of an ANC disciplinary committee which affects its members and to take all steps necessary to ensure that the sanction is enforced.
8. The ruling of an ANC disciplinary committee against a Youth League member is not limited to expulsion but extends to suspensions.
9. Consequently, if the respondent, is expelled or suspended by the ANC, that ruling would affect and be applicable to his membership of the Youth League and he would no longer be permitted to participate in the Youth League in any capacity.
T. Sanction
T1. Factors taken into account for the purpose of sanctioning
· The seriousness of the charge;
· the presence of aggravating factors;
· any previous findings against the respondent;
· the presence of mitigating factors; the concept that the sanction must take into consideration the interests of the organisation, the respondent and society at large;
· the concept of a graduated approach to sanctioning; and
· the sanction must fit the offence.
T2. Consideration of an appropriate sanction
1. As the President of the Youth League, the respondent had a duty to lead and direct the Youth League and to focus on the League's constitutional mandate in terms of Rule 7.4 of the ANC Constitution viz. to confront and champion the issues facing the youth and to ensure that youth make a full contribution to the work of the ANC and to the life of the nation.
2. This places an obligation on the leadership of the Youth League to prepare its membership for active participation in the motherbody and to defend the constitution of the ANC, its values and its policies.
3. Outside the core constitutional mandate of the Youth League, it was and still is open to and expected of the ANC Youth League to push the boundaries of policy formulation within the ANC on any policy issue, as it has done historically, in order to make a full contribution to the work of the ANC and the life of the nation, provided that such lobbying is done within ANC policy and procedure.
4. The fundamental goal of the ANC remains the creation of a united, non-
racial, non-sexist, democratic and prospersous South Africa. Non- racialism was and still remains the driving force for the formation and existence of the ANC. In the furtherance of this objective, the respondent had an obligation to shy away from sowing division and disunity in the ANC.
5. In the view of the NDC, the respondent, as the leader of the Youth League, should have focused his energy on developing programmes to actively reach out to the broad cross-section of the youth, both Black and White, so that the Youth League of today would be at the forefront in cementing the foundation of tomorrow's non-racial and non-sexist society.
6. The NDC is also of the view that the respondent should have realised that states guard their sovereignty jealously and that the ANC had given an undertaking in the Freedom Charter, more than sixty years ago, to respect this convention and to respect the right to peace and friendship and self-determination of all nations.
7. As the ANC is the ruling party in government, the NDC has no doubt that the respondent's misconduct would have a negative impact on international and inter-state relations and would be prejudicial to South African society as a whole.
8. The acts of misconduct for which the respondent has been found guilty are very serious and have damaged the integrity of the ANC and the international reputation of South Africa.
9. In May 2010 the respondent was found guilty of contravening Rule 25.5 (i) of the ANC Constitution and the sanction imposed, inter alia, was that should the respondent be found guilty of contravening Rule 25.5(i) of the ANC Constitution within the next two years, his membership of the ANC shall be summarily suspended for a period to be determined by the ANC.
10. The ANC Youth League is a preparatory school for future activists and
leaders of the movement . Discipline is a core attribute of leadership and one would have expected the respondent to have had led by example. In the space of a year and a half, the respondent has been found guilty of 4 (four) acts of sowing division in the ANC, bringing the ANC into disrepute and defying the National Officials.
11. The NDC is of the view that, at its most fundamental level, the ANC is a voluntary organisation which people join willingly because they subscribe to its aims, objectives, culture, ideals and value system. This is the glue that has held the ANC together for almost a hundred years. No one is forced to join the ANC or compelled to remain in the ANC if he or she is not happy. In the same spirit, the ANC should not be obliged to retain the active membership of any person, without exception, who pays scant regard to the membership oath of the ANC, its policies, organisational culture, value system and Code of Conduct.
12. Having considered all these factors, the sanction imposed is as follows:
12.1 With regard to the respondent's disciplinary hearing in May 2010, the respondent's membership is suspended for a period of 2 (two) years;
12.2 In respect of the present disciplinary hearing:-
12.2.1 The respondent's membership is suspended for a period of 5 (five) years;
12.2.2 The sanctions imposed in 12.1 and 12.2.1 shall run concurrently.
12.2.3 Pursuant to Article 11.2 of Schedule A of the Constitution of the ANC Youth League, this ruling is applicable to the respondent's membership of the ANC Youth League; and
12.2.4 The respondent shall vacate his position as President of the ANC Youth League.
The respondent has the right to appeal to the NDCA within 14 days.
Dated at Johannesburg this 10h day of November 2011
Source: City Press
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