ANC NDC DISMISSES MALEMA APPLICATION ON RELEASING FINDINGS TO MEDIA

The African National Congress (ANC) National Disciplinary Committee (NDC) resumed its proceedings on Sunday, 11 September 2011, at 10h00. The NDC delivered its ruling on the application by comrade Julius Malema that the NDC breached the ANC Constitution by releasing to the media its finding on the application to quash the charges. The NDC dismissed the application. A full copy of this ruling is also send out in full to the media.

An application was made by the parties in the light of the Equality Court judgement to be delivered in the South Gauteng High Court on Monday 12 September 2011, to adjust the schedule of proceedings. Consequently, no hearings will take place on Monday 12 September 2011.

It was agreed that the NDC will start the hearings today in the cases of comrades Sindiso Magaqa and Floyd Shivambu. Closing arguments in the separate consolidated case against the five charged ANC Youth League members (Malema, Lamola, Mabe, Magaqa and Masenogi) will be heard on Tuesday, 13 September 2011.

Once the above cases are concluded, the hearings against comrade Malema will resume.

RULING ON OBJECTION RAISED BY COMRADE JULIUS MALEMA THAT THE NATIONAL DISCIPLINARY COMMITTEE (NDC) OF THE ANC BREACHED THE ANC CONSTITUTION BY RELEASING TO THE MEDIA ITS FINDING ON THE APPLICATION TO QUASH CHARGES AFRICAN NATIONAL CONGRESS

AFRICAN NATIONAL CONGRESS NATIONAL DISCIPLINARY COMMITTEE Case No: /2011

In the matter of:

AFRICAN NATIONAL CONGRESS NATIONAL OFFICIALS - Complainant

And

JULIUS MALEMA  Respondent

RULING ON OBJECTION RAISED BY COMRADE JULIUS MALEMA THAT THE NATIONAL DISCIPLINARY COMMITTEE (NDC) OF THE ANC BREACHED THE ANC CONSTITUTION BY RELEASING TO THE MEDIA ITS FINDING ON THE APPLICATION TO QUASH CHARGES 

A. REQUEST FOR RULING

On Friday, 2 September 2011, the NDC released to the media its entire finding on the application by comrade Julius Malema to have the charges quashed.

On resumption of the proceedings comrade Malema raised an objection that the release of the finding was in breach of Rule 25.11 and the Appendix of the ANC Constitution and requested a ruling on the matter. The NDC said it would rule after due consideration of the issue.

Rule 25.11 of the ANC Constitution provides that, "The relevant Disciplinary Committee shall in writing report the outcome of each disciplinary proceeding to the secretary of the executive structure which established it and then the decision shall be publicly announced by the relevant Disciplinary Committee."

This is further restated in the Appendix under "Adjudication" as follows: "that the ruling and penalty are publicly announced (Rule 25.11)."

B. CONTEXT

1. The ANC Youth League released a statement on 21 August stating, amongst others, that "the ANC Youth League will subject itself to the discipline and policies of the ANC"

2. At no stage did the ANC, or the NDC, release to the media details of the specific charges against members.

3. A call was made on 23 August by the ANC Youth League Secretary General that "All young people in South Africa must come out in full support of our leaders, because they are being charged for championing our demands of free education and the nationalisation of mines." This call was followed by further calls for support for those charged.

4. In the period 22 August to 29 August the media carried reports containing details of the charges against the charged members of the ANC.

5. The ANC Youth League released a statement on 29 August stating, amongst others, that "The ANC Youth League leadership will be appearing before the ANC Disciplinary Hearing from Tuesday, the 30th of August 2011 to answer the case that has been brought by the ANC. The ANC YL leadership respects the internal process of the ANC and will at all times be guided by the directives and guidelines of the ANC leadership collective, its policies and Constitution"

6. Notwithstanding these statements, and the constitutional provisions of Rules 5.2 (g) and 25.1 (a) and (c) that all members of the ANC are subject to the discipline of the ANC, during the period 22 August to 2 September statements were made, quoting ANC Youth League leaders and sources, setting out the details of the charges; details of the findings of the NDC with respect to representatives of comrade Malema; the application for recusal of certain members of the NDC and separation of one of the charges against comrade Malema, and details of the arguments of the representatives of comrade Malema in support of an application to quash all charges.

7. At the commencement of the hearing on 30 August there were unprecedented violent demonstrations outside Luthuli House causing disruption and chaos in the city of Johannesburg.

C. EVALUATION BY NDC

1. On reading Rule 25 as a whole, Rule 25.11 is clearly intended to apply to those instances where a finding has been made on the substance of the charge after hearing all evidence and consideration of the matter by the relevant disciplinary committee.

2. Rule 25.11 is a directory provision and procedural in nature and does not preclude the NDC communicating on any preliminary matter prior to the conclusion of a hearing.

3. At the time of the media release, while the charges were formally put to the charged member, he did not plead to the charges. Consequently, the parties had not joined issue and Rule 25.11 would have no application.

4. Furthermore, given the context of leaks to the media and speculation about proceedings, the NDC deemed it to be in the best interest of the organisation to inform ANC members and the public on its ruling on the application to quash all charges against comrade Malema.

5. The NDC, in adjudicating in disciplinary proceedings, has to, at all times, consider the appropriate balance between fair and equitable treatment of the member charged with misconduct and the interest of the ANC as an organisation. In making its decision to publish the finding, the NDC took into consideration the following factors:-

5.1 the ANC owed a duty to keep its members, alliance partners and the public informed of developments in the proceedings in order to avoid any confusion amongst its members in the light of media leaks from unknown persons;

5.2 the unprecedented public violence that took place in central Johannesburg on Tuesday 30 August 2011;

5.3 any summary of the finding, which omitted material issues, could have been prejudicial to comrade Malema;

5.4 media speculation on the outcome of the application may cause confusion within the ranks of the organisation;

5.5 media speculation that the disciplinary proceedings were politically driven; and 

5.6 any further media leaks by unknown persons, which still require further investigation, could distort the facts of the proceedings.

6. Even if the argument of comrade Malema on the interpretation of Rule 25.11 was accepted, which it is not, the NDC concluded that such exceptional circumstances warranted the publication of the NDC's preliminary findings, which in any event could not be prejudicial to comrade Malema.

7. In his application, comrade Malema relied solely on formalism (i.e. a literal reading of Rule 25.11) and did not advance any grounds to show that the publication of the finding would be prejudicial to him. 

D. FINDING

On reviewing its decision to publish the finding, the NDC finds that:-

1. Rule 25.11 does not apply in this case and does not preclude or prohibit the NDC from publishing a finding on any procedural application prior to the conclusion or outcome of a disciplinary hearing.

2. The publication in full of the ruling on the application to quash/drop charges dealt solely with matters of procedure and did not deal with either the content or substance of the charges, or any evidence in relation to the charges. Consequently, the ruling does not constitute an outcome of the disciplinary proceeding as contemplated in rule 25.11 but merely a finding on a procedural matter.

3. The NDC's decision to publish the finding was reasonable, warranted and justified as comrade Malema was not prejudiced, especially in light of the statements leaked to the media as set out under B (4) above.

The objection raised by comrade Malema is therefore dismissed.

Dated at Johannesburg this 11th day of September 2011

DEREK HANEKOM - CHAIRPERSON OF NDC

SUSAN SHABANGU - MEMBER OF NDC

COLLINS CHABANE - MEMBER OF NDC

AYANDA DLODLO - MEMBER OF NDC

FEBE POTGIETER-GQUBULE - MEMBER OF NDC

PLAYFAIR MORULE - MEMBER OF NDC 

Issued by Derek Hanekom, Chairperson, ANC National Disciplinary Committee, Chief Albert Luthuli House, September 11 2011

Click here to sign up to receive our free daily headline email newsletter