ITS NOT HIM ITS HIS LEGAL TEAM, THEY WERE TRYING TO BE MORE LEGAL BUT I THINK BY NOW THEY CLEARLY UNDERSTAND WHAT THE ANC CONSTITUTIONIS.
On Fri, Sep 2, 2011 at 2:12 PM, Michael Mzwanele Mdekazi < [email protected]> wrote: > Cdes, am also shock! it means Malema doesn't knw the constitution of > the ANC as an NEC member, why join the organisation if its > constitution is unconstitutional or maybe he's saying these things 2 > get off the hook... > > On 9/2/11, Dominic Tweedie <[email protected]> wrote: > > > > ANC > > > > *ANC Media Release, 2 September 2011* > > > > > > *ANC NDC’s ruling on respondent’s application to quash/drop charges* > > > > > > The respondent, cde Julius Malema, instituted an application on 30 > > August 2011 for the quashing of all charges. He advanced 22 arguments in > > support of the application. > > > > *A. Purpose and function of the NDC* > > > > The NDC is concerned that both parties advanced complex legal arguments > > in terms of the Criminal Procedure Act, supported by case law, and the > > South African Constitution to justify whether or not the charges should > > be quashed. For this reason the NDC considers it necessary to re-state > > the purpose and function of the NDC to guide the proceedings going > > forward. They are: > > > > 1. The ANC is a voluntary organisation with a constitution; > > 2. The ANC is a vibrant political movement which encourages > > constructive debate in an organised manner; > > 3. The ANC seeks to regulate the conduct of its members through a > > code of conduct which is set out in Rule 25.5 of its > constitution; > > 4. All its members have subscribed to the constitution of the > > organisation, are bound by the ANC membership oath and the code > > of conduct; > > 5. The ANC has the right to discipline its members; > > 6. A disciplinary hearing of the NDC is in terms of the > > organisation’s constitution and is no more than an ordinary > > internal disciplinary process instituted by the organisation > > against any of its members for allegedly breaching the code of > > conduct of the organisation; > > 7. The NDC obtains its powers from the ANC constitution and is > > authorised to conduct disciplinary proceedings; > > 8. The NDC is 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; and > > 9. In terms of its mandate, the NDC is limited to the adjudication > > of acts of misconduct allegedly committed by members of the > > organisation. > > > > > > *B. Interpretation of the organisation’s code of conduct* > > > > The code of conduct, in the context of the ANC constitution, encompasses > > actions and utterances of its members. > > > > Save for Rule 25.5 (a) and (b), the code of conduct is, understandably, > > couched in very wide terms to accord with the nature of the organisation > > and its aims and objectives as set out in Rule 2 of its constitution. > > > > In Rule 25.5 the ANC deems certain actions and utterances of its members > > to constitute misconduct. > > > > The benchmark for determining whether a particular act or utterance of a > > member could constitute misconduct can be found in Rule 2 of the > > constitution. > > > > C. Respondent’s arguments for quashing of charges > > For the purpose of determining the respondent’s application, the NDC > > took into consideration the following legal arguments that were advanced > > in support of the application to quash all charges: > > > > 1. the rules must be known to whom it applies; > > 2. the rules are unreasonable; > > 3. the rules cause confusion; > > 4. there is no rule which governs what members can say; > > 5. the charges were not instituted within a reasonable time; > > 6. none of the charges disclose a cause of action or disclose an > > offence; > > 7. the ANC constitution is unconstitutional; > > 8. the rules must be consistently applied; > > 9. Rule 25.1 (a) is not clear; > > 10. it was not clear which policy or which rule had been breached; > and > > 11. the charges are not very clear; > > > > > > *D. Law applicable to a charge* > > > > The general rule in law, also applicable in this hearing, is that a > > charge must be set out with sufficiently particularity to enable a party > > to plead. This means that the complainant must set out the rule that > > was allegedly transgressed, the date when it occurred and the details of > > what was said or done by the respondent. > > > > There is no obligation on a complainant to set out evidence in the > > allegations to a charge. > > > > *E. Onus on respondent in application for quashing of charges* > > > > In an application to quash the charges, the respondent has the onus to > > persuade the NDC that upon every interpretation that can be brought to > > bear on the allegations in support of the charge, no offence can be > > disclosed. > > > > Furthermore, it is trite law that the leading of evidence can cure any > > lack of a cause of action or non-disclosure of an offence in a charge. > > > > *F. Consideration of respondent’s legal arguments for the quashing of > > charges* > > > > */F1. Respondent’s argument that he was not aware of the rules of the > > organisation/* > > > > The ANC constitution has a code of conduct which sets out a range of > > acts of misconduct in Rule 25.5 that binds all members. > > > > If a member transgresses the code of conduct, the organisation has the > > right to discipline that member. > > > > On joining the ANC, the respondent undertook to observe discipline as > > set out in Rule 5(2)(g) of the constitution. > > > > The respondent is also bound by the oath as set out in Rule 4.15 to > > respect the constitution and defend the unity and integrity of the > > organisation and its principles and to combat any tendency towards > > disruption and factionalism. > > > > As a leader and member of the NEC of the ANC in terms of Rule 12.3(e), > > the respondent was in the opportune position of having full knowledge > > and information of the policies of the ANC. > > > > Against this background and with specific reference to the respondent, > > the NDC finds that the respondent was either aware of or ought to have > > been aware of the code of conduct in the ANC constitution governing > > misconduct. > > > > Consequently, the argument that the respondent did not know the rules of > > the ANC constitution, particularly Rule 25.5 governing misconduct, > > cannot be sustained. > > > > */F2. Respondent’s arguments that the rules are unreasonable and cause > > confusion/* > > > > The ANC is almost a hundred years old and, for most of this period, had > > a constitution with a code of conduct. The ANC has a large membership > > base throughout the Republic of South Africa. > > > > Over the years there has been no outcry from its members that the code > > of conduct, as set in Rule 25.5 of the ANC constitution, is unreasonable > > or that it causes confusion. > > > > The ANC constitution was properly adopted by its members at a National > > Conference. > > > > For these reasons the NDC finds that the arguments that the rules are > > unreasonable and cause confusion are without merit. > > > > */F3. Respondent’s argument that there are no rules in the constitution > > governing what members can say/* > > > > The code of conduct in the ANC constitution encompasses both actions and > > utterances. > > > > For this reason the NDC finds that the argument is ill-founded. > > > > */F4. Respondent’s argument that the charges were not instituted within > > a reasonable time/* > > > > The NDC accepts that charges for misconduct must be instituted against a > > member within a reasonable time. The question, however, is how does one > > determine what is reasonable. > > > > In the present case the charges were instituted against the respondent > > on 19 August 2011 for acts of misconduct allegedly committed and > > utterances allegedly made between 9 May and 31 July 2011. > > > > In terms of the ANC constitution, disciplinary action for misconduct is > > not automatic. Rule 25.3 makes provision for an inquiry to be conducted > > before the relevant body in the ANC is satisfied that disciplinary > > proceedings are warranted. > > > > In the case of branches, the authority of the Provincial Working > > Committee (PWC) in terms of Rule 25.6(d) has to be first obtained before > > disciplinary proceedings can be instituted. > > > > Being a large organisation that the ANC is, these procedures, whether > > conducting an inquiry or obtaining the authority of the PWC, can be > > time-consuming. > > > > Consequently, by virtue of these procedural requirements in the > > constitution and having regard to the size of the ANC, it would not be > > unreasonable for disciplinary proceedings to be instituted within a few > > months after the alleged commission of the act of misconduct. > > > > */F5. Respondent’s argument that none of the charges disclose a cause of > > action or disclose an offence/* > > > > After consideration, the NDC is satisfied that in the present case the > > charges set out, in each instance, the particular rule that has been > > contravened, the dates and places and the circumstances under which the > > acts were allegedly committed and utterances allegedly made by the > > respondent. > > > > As stated above, there is no obligation on the complainant to set out > > evidence in the allegations to a charge to constitute a valid charge. > > Moreover, the disclosure of an offence can be established through > evidence. > > > > The NDC finds that by stating precisely the rule that was contravened > > and providing details of the act done or utterances made by the > > respondent, the charges, in each case, disclose an offence. > > > > Whether the complainant will ultimately be able to prove the charges > > against the respondent is an entirely different matter. Such a > > determination can only be made in the closing argument stage of the > > hearing and after evaluating all the evidence. > > > > */F6. Respondent’s argument that the ANC’s constitution is > > unconstitutional/* > > > > Respondent’s argument that the constitution of the ANC, a voluntary > > organisation, is unconstitutional and in conflict with the Constitution > > of the Republic of South Africa is disingenuous. > > > > */F7. Respondent’s argument that the rules must be consistently applied/* > > > > In terms of Rule 25.6 (a) of the organisation’s constitution, the NDC > > acts on referrals. The NDC finds that inconsistent application of the > > rules does not constitute a ground for the quashing of charges. > > /* > > F8. Respondent’s arguments that rule 25.1 (a) of the ANC constitutionis > > not clear; that it is not clear which policy or which rule has been > > breached and that the charges are not very clear*/ > > > > After consideration of the arguments, the NDC rules as follows: > > > > 8.1 The NDC is satisfied that Rule 25.1 (a) is clear in its intent for > > purposes of discipline. The expectation in this rule, as set out in the > > rule itself, is that members, in addition to the provisions of the ANC > > constitution, must also have knowledge of the rules, regulations, > > standing orders and code of conduct, as adopted and amended from time to > > time, as well as all policies and decisions properly adopted or made in > > terms of the Constitution. > > > > 8.2 The charge sheet sets out with clarity which rule has been breached > > and the charges refer to specific sections in Rule 25.5 to inform the > > respondent of the act of misconduct complained of. > > > > 8.3 As stated above, the charges in the charge sheet are valid. > > > > *G. Further arguments raised by the Respondent* > > > > The respondent also advanced the following arguments to support his > > application to quash the charges: > > > > 1. that the charges are politically motivated; > > 2. that the ANC Youth League is an autonomous organisation; > > 3. that the charges are a disguise for paralysing and making it > > difficult for the ANC Youth League to express itself; > > 4. that this disciplinary hearing is more like shooting the > > messenger to > > 5. silence the ANC Youth League; > > 6. that cde Julius Malema was acting in a representative capacity > > in the course and scope of his official capacity as President of > > the ANC Youth League; > > 7. that the role of the ANC Youth League is to be a critical voice; > > 8. that political issues require political solutions; > > 9. that any attempt to silence the ANC Youth League is a subversion > > of the Constitution of the Republic of South Africa; > > 10. that cde Julius Malema only expressed an opinion about the > > situation in the sovereign state of Botswana; > > 11. that the disciplinary hearing against cde Julius Malema is > > designed to stifle debate and solve private problems; and > > 12. 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.’ > > > > > > With respect to the above arguments, the findings of the NDC are as > follows: > > > > * These arguments do not constitute grounds for quashing the > charges; > > * The NDC is established to adjudicate matters pertaining to acts > > of misconduct and violations of the Constitution allegedly > > committed by members. It is not authorised in terms of its > > mandate in the ANC constitution to adjudicate on political, > > policy and organisational matters; > > * Cde Malema was charged in his capacity as a member of the ANC > > and this matter is being dealt with on that basis; and > > * The charges against cde Malema relate to acts of misconduct and > > violations of the Constitution as set out in Rule 25.2 of the > > ANC Constitution. > > > > > > *H. Ruling on application* > > > > In respect of the 22 arguments advanced by the respondent and for the > > reasons set out above, the NDC rules that the respondent’s application > > to quash all the charges is dismissed. > > > > 2 September 2011 > > > > > > > > -- > > You are subscribed. 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