Aluta continua for Malema as his charges stand

By Carien Du Plessis 2 September 2011

ANC Youth League leader Julius Malema suffered another setback on Friday after the ANC’s disciplinary committee dismissed his arguments to have his charges quashed. Malema used the Constitution and bits from criminal law, but judging on the long statement, the committee also did some homework. CARIEN DU PLESSIS reports from Luthuli House.

The trapped young lion Julius Malema tried everything in his power to get out of it and advanced a machine gun rally of 22 arguments to support his reasons why the charges should be quashed. He left no ground uncovered.

It seems Malema’s legal team on Tuesday tried to argue that Malema didn’t know any better and didn’t know the constitution of the ANC. He even chose to hit his own party with the country’s Constitution, a document not known to be his friend because of the bladdie agent property clause. But this week he used it to argue the ANC’s constitution goes against his constitutional rights.

Malema also argued that the rules are “unreasonable”, that they cause “confusion”, that there are no rules that govern what the ANC’s members (and motor mouths) can say, the charges came too late and that they don’t disclose “a cause of action or disclose an offence”, that the ANC’s rules are not consistently applied, that there was no clear policy or rule which had been breached, and that the charges were “not very clear”.

He also said (and we quote from the statement):

  • that the charges are politically motivated;
  • that the ANC Youth League is an autonomous organisation;
  • that the charges are a disguise for paralysing and making it difficult for the ANC Youth League to express itself;
  • that this disciplinary hearing is more like shooting the messenger to silence the ANC Youth League;
  • that Malema was acting in a representative capacity in the course and scope of his official capacity as president of the ANC Youth League;
  • that the role of the ANC Youth League is to be a critical voice;
  • that political issues require political solutions;
  • that any attempt to silence the ANC Youth League is a subversion of the Constitution of the Republic of South Africa;
  • that Malema only expressed an opinion about the situation in the sovereign state of Botswana;
  • that the disciplinary hearing against Malema is designed to stifle debate and solve private problems; and
  • that the real motive behind the charges is to stifle the debate on nationalisation, referred to in the argument as “the elephant in the room”.

The disciplinary committee returned the fire, saying Malema and his duo of big shot lawyers, senior counsel Patric Mtshaulana and advocate Dali Mpofu, advanced “complex legal arguments in term of the Criminal Procedure Act, supported by case law, and the South African Constitution to justify whether or not the charges should be quashed”.

The disciplinary committee reminded them what it’s all about: The ANC is a voluntary organisation, it “encourages constructive debate in an organised manner”, it has a code of conduct, all members subscribe to its constitution and are bound by it by oath, the ANC has a right to discipline its members, the disciplinary hearing is done in terms of the party’s constitution, the disciplinary committee has the right to conduct the hearing, but it’s not a “court of law but a quasi-judicial institution of the ANC. It has its own rules and operates on principles of equity and fairness.”

The committee said “in Rule 25.5 the ANC deems certain actions and utterances of its members to constitute misconduct”, so Malema can’t use the speak-no-evil defence.

The committee said it’s up to Malema to persuade them why the charges should be quashed and he should show that he committed no offence.

It said he should have known the rules, as he’s bound to them by oath.

As a leader and member of the ANC’s national executive committee Malema “was in the opportune position of having full knowledge and information of the policies of the ANC.” (It also seems to us that his political school punishment from last year’s disciplinary didn’t work.)

To his argument that the rules are “confusing”, the committee also put its foot down and said nobody’s complained about the rules before. “The ANC is almost a hundred years old and, for most of this period, had a constitution with a code of conduct,” and “over the years there has been no outcry from its members that the code of conduct … is unreasonable or that it causes confusion.”

About the time argument, the committee said the charges relate to alleged misconduct and utterances between May 9 and July 31, and because disciplinary action is not “automatic” but needs an “inquiry” first. That took time.

As to Malema’s claim that the charges weren’t properly set out, the committee dismissed it, and said the charges did cover actual offences.

The committee got harsh on Malema’s claim that the ANC’s constitution is “unconstitutional”, saying simply the argument is “disingenuous”.

It further said that the inconsistent application of disciplinary rules is not a valid argument for quashing the charges.

The announcement on Friday morning just after 10:00 happened by email, and the journalists camped out in Sauer Street, opposite the ANC’s Luthuli House headquarters, slowly sparked to life as news of the announcement spread.

Malema and his legal team, as well as the ANC’s leaders, were still locked in a meeting inside Luthuli House as the word got out. After spending the whole of Thursday deliberating and writing their ruling, the disciplinary committee did everything by the book to avoid criticism, and informed Malema of their decision by 9:00 on Friday morning.

Only about 300 or so supporters had come to Beyers Naude Square to show their support for their leader, and true to Malema’s instructions earlier, they behaved and there were only small, isolated incidents of hostility against the media.

The police took no chances and cordoned off streets around Luthuli House with rolls of barbed wire, and the officers in riot gear maintained a strong presence.

The ANC’s national disciplinary committee, in a refreshing display of openness, said it “decided to release the entire ruling to the media for the benefit of its members, the alliance partners and the general public”.

It is understood that the ANC would need to follow the letter of the law and keep their procedure watertight in the case of a possible future challenge – an indication that the party is planning to take serious action. In fact, if Malema is retained as leader of the ANC Youth League, he will be more powerful than ever and it would be almost impossible for President Jacob Zuma and his fellow leaders to retain control of the party. So it is expected that they would work meticulously on this one.

Malema’s failure to have the charges against him dropped was his third setback this week. The first happened when three members of the national disciplinary committee, including its chairman Deputy Science and Technology Minister Derek Hanekom, Mining Minister Susan Shabangu, and Minister in the Presidency Collins Chabane refused to recuse themselves because the reasons advanced by Malema weren’t good enough.

Then one of Malema’s three lawyers, Muzi Sikhakhane, was told he could not represent the young lion anymore because he wasn’t an ANC member in good standing.

Malema won a minor victory by persuading the ANC to keep proceedings in Luthuli House and not to move it to a secret location, following Tuesday’s violent displays by supporters.
The ANC was concerned that the businesses would suffer but insiders said the venue was really “immaterial”.

It’s not weekend for Malema yet. The case against him and his four League officials for barging into a meeting of the ANC’s top six is being heard on Friday afternoon.

The case against Malema on the other four charges was postponed till Monday. Seems he and his team would have a whole weekend to ponder other ways of disentangling him from the long string of rope the ANC has given him to hang himself with. DM

Photo: iMaverick



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