South Africa, Politics

Strike three, you’re (still) out! NDCA upholds Malema’s expulsion

By Sipho Hlongwane 25 April 2012

Late on Tuesday night, the national disciplinary committee of appeals upheld the expulsion of ANCYL president Julius Malema. It also upheld the suspension of the membership of ANC spokesman Floyd Shivambu and varied the suspension of ANCYL secretary-general Sindiso Magaqa to the effect that his membership is suspended from the ANC for one year. Did anyone not see this coming? By SIPHO HLONGWANE.

At a very ungodly hour on Tuesday night, the rumours that had been flying around all evening were confirmed by the ANC’s national disciplinary committee of appeals via a news statement. As a result, all three were required to vacate their positions immediately as the rulings affected their ANCYL membership.

None of this was surprising. There was never an indication that any of the appellants were preparing anything that could be called convincing heads of arguments in the appeal. In fact, during the period in which the appeal was being heard, the appellants continued to act in a provocative manner, which earned Malema his first summary suspension, and Magaqa a sharp rebuke from the ANC national officials.

A number of interesting arguments and counter-arguments were raised during the trial, according to the judgement released by the ANC. Magaqa was originally sanctioned for insulting former ANCYL president and current minister of enterprise Malusi Gigaba. Magaqa’s sentence would not take effect if he apologisd to Gigaba within 15 days of the ruling.

And on March 11, Magaqa issued a statement saying he was sorry. However, this statement had no effect on the NDCA – they refused to allow Magaqa to withdraw his appeal.

He and his lawyers apparently neglected to furnish evidence of their apology to the NDCA, and when the apology was issued, the proper procedures within the ANC weren’t followed, meaning that in the pseudo-legalistic understanding of the party, the apology was never communicated to its intended recipients properly. It’s terribly technical stuff, but still, not unforeseeable or unavoidable on the part of the legal experts representing Magaqa.

Many arguments raised by the appellants were struck down thanks to a rather careless reading of the ANC constitution and the scope it grants the ANC’s disciplinary committees. “Disciplinary proceedings in the ANC are sui generis in nature and are governed by the ANC constitution and not by the principles of criminal law and procedure,” the statement of the NDCA said.

Thanks to this one technicality – the ANC not being bound by the rules of criminal law and procedure – the disciplinary committees weren’t obliged to investigate if some provocation had occurred to assuage the moral guilt of the appellants. This section of the judgement is worth quoting fully:

In the view of the NDCA, disciplinary proceedings in the ANC, should satisfy four requirements, which can be stated as follows:

  • Is there a rule? (In this case, the provisions of Rule 25.5 of the ANC Constitution which sets out the disciplinary Code of Conduct)
  • Is the rule reasonable?
  • Was the charged member aware of the rule?
  • Did the charged member contravene the rule?

If these requirements are satisfied by cogent evidence and proved on a balance of probabilities, a charged member will be found guilty of contravening the ANC’s Code of Conduct as set out in Rule 25.5 of the ANC Constitution.

Unlike in a criminal trial, the Chief National Presenter, or any presenter in ANC disciplinary proceedings, is not required to investigate the state of mind of the charged member when he or she committed the act of misconduct (referred to in a criminal trial as mens rea) or whether the charged member was provoked into committing the act of misconduct.

Having satisfied itself that these four requirements had been met, the NDCA dealt with the heads of arguments set out by the appellants.

Another tactical blunder was the decisions to replace legal representatives at the eleventh hour. Given that this hearing was sui generis in nature (a term that the ANCYL leaders would not have heard for the first time on Tuesday), it meant that the NDCA had carte blanche to give full expression to their frustration at the delay caused by the ANCYL finding a new lawyer who needed time to familiarise himself with the case by deciding the case on the basis of written submissions only.

A number of ludicrous arguments were raised as well. For example, the appellants argued that the NDC had no jurisdiction over the ANCYL as it was an instrument of the ANC’s constitution, and not the ANCYL’s. That one was shot down quite easily. According to the ANCYL constitution, any of its members over the age of 18 are automatically members of the ANC and thus fall under the jurisdiction of the NDC and its rulings.

There’s also a warning bell that has sounded for the ANCYL and whoever seeks to lead it after Malema has gone: the appellants have constantly claimed that the NDC was relying on an outdated constitution, but then failed to establish the issue of the veracity of that constitution at the appropriate forum (the NDC).

That’s right – they failed to prove to the disciplinary committees that they had the version of the constitution. In any event, that issue is going to be a ticking time bomb for a while yet. Allegations are flying thick and fast that Malema’s people tampered with the ANCYL constitution after the national conference in the middle of last year. That particular offence is punishable by – you guessed it – expulsion from the party.

Malema, Magaqa and Shivambu have all been ordered to vacate their positions as the disciplinary route has now come to an end. They can still appeal to the ANC’s national executive committee (of which the NDC and NDCA are subsets), but will have to do so as expelled and suspended members. That at least solves one problem for political journalists: Malema is now definitely a ANCYL president. DM

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Photo by Jordi Matas.


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