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Naïve and absurd: ANC dismisses Malema’s appeal, the end in sight

Naïve and absurd: ANC dismisses Malema’s appeal, the end in sight

Only one charge of the original six brought against the ANC Youth League was set aside by the ANC’s national disciplinary committee of appeals. Julius Malema’s days in the wilderness are that much closer now – all that remains is for the original disciplinary committee to hear evidence in mitigation of sentence. The ANC has signalled that it wants to present evidence in aggravation of sentence at that hearing. So it isn’t quite over yet. But the letters on the wall are large and clear. By SIPHO HLONGWANE.

If anybody was playing a drinking game (down a shot every time he says “absurd”, “naive” or “ridiculous”) during Cyril Ramaphosa’s speech at the ANC’s national disciplinary committee of appeals (NDCA) press conference to announce the outcomes of the appeal by ANC Youth League leaders, they would have got properly sloshed by the end of it.

The 14-page summary of the ruling by the NDCA was an exercise in quasi-legal excoriation. The ANC Youth League leaders were once again thrashed by a disciplinary body of the ANC. The NDCA upheld almost every single sentence handed down by the national disciplinary committee (NDC). The leash that was put onto the ANCYL by the NDC in November is just as short, and Malema’s ANC-based political career is just as dead.

You’ll remember that four separate cases were brought against the ANCYL’s top five leaders, as well as the spokesman Floyd Shivambu.

  • The first case saw the indictment of Malema, treasurer-general Pule Mabe, secretary-general Sindiso Magaqa and deputy secretary-general Kenetswe Mosenogi for deliberately disrupting a meeting of the ANC national officials and for undermining the authority of the secretary general of the ANC. The respondents were found guilty as charged, and all were handed two-year membership suspensions, suspended for three years.
  • The second case dealt with secretary-general Sindiso Magaqa for sending out a derogatory statement on 2 August 2011, in which he “prejudicially” said that public enterprises minister Malusi Gigaba sided with “imperialist forces”. Magaqa’s membership was suspended for 18 months, the sanction itself suspended for three years if he didn’t publicly apologise to Gigaba within 14 days of the sanction being handed down.
  • The third hearing charged ANCYL spokesman Floyd Shivambu on three counts: swearing at a journalist, wherein the ANC argued that it was brought into disrepute, and issuing a statement that provoked serious divisions or a breakdown of unity in the organisation by making pronouncements on Botswana that were contrary to ANC policy on foreign matters. Shivambu was found not guilty on the second count of misconduct, but only because there was an obvious overlap between the first two charges, and thus no need to find him guilty again. The NDCA ruled that Shivambu was personally liable for statements he made as an ANCYL spokesman.
  • Malema was found guilty by the NDC of provoking serious divisions or a breakdown of unity by unfavourably comparing Jacob Zuma to Thabo Mbeki, and of bringing the ANC into disrepute by making declarations about Botswana.

All these charges were upheld by the NDCA, save for the first one.

In the statement read out by Ramaphosa, the appeals committee said, “The NDCA has given careful consideration of the events as related by all parties and has concluded that the actions of the Appellants could not be described as deliberate disruption or barging as described by the Respondent. Accordingly, the appeal succeeds. The Appellants are found not guilty and the conviction and sanction is set aside.”

One of the arguments raised by the ANCYL is that the NDC committed a “gross irregularity” by failing to hear mitigating evidence from them. The ANC itself argued that the ANC constitution or disciplinary procedure didn’t demand that a hearing must immediately follow to deal with mitigation of sentence. However, the NDCA accepted that informal discussions held between the NDC and the ANCYL’s representatives may have created an expectation in the minds of the appellants that a hearing to deal with mitigation would immediately follow, and thus they had no need to lead any such evidence in the first hearing.

Because of that, and the fact that the ANC disciplinary hearing is of a “sui generis” nature (it is unique – Ramaphosa most likely means that it has some wiggle room when it comes to procedural matters), a two-stage inquiry may be accommodated, and the matter has now been referred back to the NDCA for a hearing in mitigation of sentencing.

The ANC has indicated in its submissions to the NDCA that if such a hearing is made, they would want to present evidence in aggravation of sentence. We’ve only just heard that they might want to do this, so it’s not clear what this evidence might be.

Which isn’t to say that we’re not going to speculate: given that the ANC accepted the ruling of the NDC when it was handed down in October, the aggravating evidence they’d want to give might refer to the statements made by the ANCYL after the NDC ruling was handed down, in which they slagged off NDC members Derek Hanekom, Susan Shabangu and Collins Chabane. They did this to the media, and not in the confines of an internal ANC hearing.

The ANCYL has taken a big gamble – it’s all they’ve got at this stage, short of an outright coup d’état – in demanding that the second hearing take place. Yes, the sanctions may be reduced, but they could also be increased.

Not that the second hearing matters in the greater scheme of things. The ANC national officials have what they wanted all along: Malema will be out of Mangaung in December 2012. DM

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Photo: Sipho Hlongwane/iMaverick.


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