Text of letter from Makhosi Khoza to the ANC KZN Disciplinary Committee, 15 September 2017

Hon. Cde Makhosi B. Khoza (PhD)
Parliament of South Africa
96 Plein Street
Cape Town
15 September 2017

To: The Presenter 
Mr. Cde. Ravi Pillay
ANC KZN Disciplinary Committee
190 Stalwart Simelane
Durban 
4001

CC: The Secretary General
Cde. Gwede Mantashe
Luthuli House
Johannesburg

The ANC Chief Whip 
Cde. Jackson Mthembu

The Speaker of Parliament
Hon. Baleka Mbethe

Dear Comrade

RE: DISCIPLINARY HEARING SET DOWN FOR SUNDAY 17 SEPTEMBER 2017

I refer to the recent Full Court decision of the High Court of South Africa, KwaZulu-Natal Division, held at Pietermaritzburg, case no 7904/2016 P, in the matter between Lawrence Dube and Others versus Sihle Zikalala and others, refer (herein referred to as “the Judgment”).

The decision delivered on 12 September 2017 declared as follows:

“The Eighth KwaZulu-Natal Provincial Elective Conference of the African National Congress held at Pietermaritzburg from 6 to 8 November 2015 and decisions taken at that conference are declared unlawful and invalid.”

It follows by operation of law that the members of the KZN Provincial Executive Committee (“PEC”) elected at that Provincial Elective Conference (“PC”) have as a result not been lawfully elected, and that PEC is a nullity, with no powers at all. Neither the void PEC nor any of its purported members can act in such capacity and any decisions and/or steps taken by that PEC or its purported members, are similarly unlawful and invalid, and of no force and effect.

For that reason alone, apart from the other material flaws in the disciplinary process initiated against me, the rescheduled disciplinary hearing is a nullity and cannot be proceeded with. Any conduct to the contrary will, at the very least, be in constructive contempt of the Judgment and unlawful.

It follows as a matter of course that any potential disciplinary steps to be taken, could only be decided upon by a newly elected PEC, after a constitutionally compliant Provincial Elective Conference has taken place and new Provincial Office Bearers have been duly elected.

I have also noted the contradictory public/press statements purportedly made by prominent ANCYL office bearers and by the ANC Women’s League, as well as by the NEC, regarding the Judgement, which developments and are also relevant to my defences in regard to the unjustified charges against me.

For similar reasons, which I will deal with more fully at the appropriate time and place, the much-publicized Supreme Court of Appeal hearing in the matter that was argued yesterday, is also an extremely relevant matter, especially in view of the watershed concessions made in open court by the Honourable President’s counsel, Adv Kemp J Kemp SC, and the Head of the NPA’s counsel Adv Hilton Epstein SC, on the strength of which it is clear that it is now common cause that the decision to withdraw the 783 fraud charges against the Honourable President, was irrational and stands to be set aside. Judgment has been reserved.

As matters presently stand, the Judgement and abovementioned developments are all of crucial importance to the proper conduct of my defence, and regarding several breaches of the ANC’s constitution and disciplinary code by my accusers and detractors in regard to the steps taken against me. 

I point out that apart from my other defences, my rights in terms of our country’s Constitution, as well as of the ANC constitution, are being breached in regard to the steps taken against me. See the dicta in the Judgment which are apposite to my matter:

“[109]….Ramakatsa on my reading thereof in fact confirms that ‘the ANC’s Constitution regulates and facilitates how its members may participate in internal activities of the party’, further ‘that the leadership of the party is accountable to its members in terms of the procedures laid down in its constitution.’ Likewise following the introductory comments in para 79 the Constitutional Court held that:

‘… if the constitution and the rules of a political party like the ANC, are breached to the prejudice of certain members, they are entitled to approach a court of law for relief.’

[110] The constitution of the ANC and the rules governing its functioning collectively constitute the terms of an agreement amongst the members. Branches do not join the ANC, individual members do. When the constitution is violated, it is not a violation possibly of only rights of the branches, but the violation of rights of individual members. The constitution of the ANC simply gives effect to the political rights each member of the ANC has in terms of s 19 of the Constitution.”

And:

[143] At common law, non-compliance with the peremptory provision of an agreement/constitution results in the setting aside of the conduct which flowed therefrom. Thus in Matlholwa v Mahuma and Others it was held that:

‘As pointed out above, the power to expel a member may be exercised only by a body in which such power has been vested by the constitution expressly or by clear and unambiguous implication, failing which the purported expulsion will be ultra vires the constitution and void.’

[144] Section 172 of the Constitution provides:

‘Powers of courts in constitutional matters
(1) When deciding a constitutional matter within its power, a court –
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including –
(i) an order limiting the retrospective effect of the declaration of invalidity;
(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.’

[145] As the ANC constitution simply gives effect to the political rights in s 19 of the Constitution, in deciding on the relief claimed this court is ‘deciding a constitutional matter’ as contemplated in s 172.”

Accordingly it is clear that the invalid disciplinary hearing against me cannot be proceeded with, and that my attendance at such void process is unnecessary.

All my rights remain reserved, including seeking such urgent declaratory relief as may be necessary to protect my rights to the fullest.
Comradely yours

Dr Makhosi Khoza

Issued by Makhosi Busisiwe Khoza via Facebook, 15 September 2017