This DC is exposing a lot of things that many people did not know. Lo and behold,..
Sent from my iPad On 02 Sep 2011, at 13:11, Tshegofatso Mogaladi <[email protected]> wrote: > > Cdes > > I am not entirely amazed Malema in his application to get his charges > quashed, claims little knowledge of certain constitutional clauses as well as > alleging that our constitution is unconstitutional. This was bound to happen > when people are just hailed and parachuted to upper structures of the > organisation without going through normal process of organisational pruning. > There are people in that NEC of youth league who have joined the organisation > just some few months before the YL elective congress in Mangaung and their > struggle credentials can only be traced back to them joining SASCO in 2003, > served in its NEC after failing several times to become Secretary General of > SASCO, served SRC's in campuses and nothing else . > > Quite frankly these people are leading the organisation they know little or > totally nothing about. This is just but one of many calamities that befalls > an organisation that does not screen its comrades before allowing them to > lead at upper structures as well as the detrimental effects of block voting. > To say the constitution is unconstitutional is absurd and I believe he should > have been charged for naivety! > > Cde George > On Fri, Sep 2, 2011 at 11:12 AM, thabo mathiba <[email protected]> wrote: > anc constitution unconstitutional malema s representative must have been high > on nyaope > > > On Fri, Sep 2, 2011 at 10:21 AM, Dominic Tweedie <[email protected]> > wrote: > > <ANC no letters.jpg> > > 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: > The ANC is a voluntary organisation with a constitution; > The ANC is a vibrant political movement which encourages constructive debate > in an organised manner; > 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; > All its members have subscribed to the constitution of the organisation, are > bound by the ANC membership oath and the code of conduct; > The ANC has the right to discipline its members; > 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; > The NDC obtains its powers from the ANC constitution and is authorised to > conduct disciplinary proceedings; > 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 > 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: > the rules must be known to whom it applies; > the rules are unreasonable; > the rules cause confusion; > there is no rule which governs what members can say; > the charges were not instituted within a reasonable time; > none of the charges disclose a cause of action or disclose an offence; > the ANC constitution is unconstitutional; > the rules must be consistently applied; > Rule 25.1 (a) is not clear; > it was not clear which policy or which rule had been breached; and > 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: > 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 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; > 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 cde Julius Malema only expressed an opinion about the situation in the > sovereign state of Botswana; > that the disciplinary hearing against cde Julius 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.’ > > 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. This footer can help you. > Please POST your comments to [email protected] or reply to > this message. > You can visit the group WEB SITE at > http://groups.google.com/group/yclsa-eom-forum for different delivery > options, pages, files and membership. > To UNSUBSCRIBE, please email [email protected] . > You don't have to put anything in the "Subject:" field. You don't have to put > anything in the message part. All you have to do is to send an e-mail to this > address (repeat): [email protected] . > > > > -- > Mr Mmamadimo Ephraim "Thabo Mathiba > > Cell No:0849782879 > Fax No:0865462214 > Other Email:[email protected] > > > -- > You are subscribed. This footer can help you. > Please POST your comments to [email protected] or reply to > this message. > You can visit the group WEB SITE at > http://groups.google.com/group/yclsa-eom-forum for different delivery > options, pages, files and membership. > To UNSUBSCRIBE, please email [email protected] . > You don't have to put anything in the "Subject:" field. You don't have to put > anything in the message part. All you have to do is to send an e-mail to this > address (repeat): [email protected] . > > -- > You are subscribed. This footer can help you. > Please POST your comments to [email protected] or reply to > this message. > You can visit the group WEB SITE at > http://groups.google.com/group/yclsa-eom-forum for different delivery > options, pages, files and membership. > To UNSUBSCRIBE, please email [email protected] . > You don't have to put anything in the "Subject:" field. You don't have to put > anything in the message part. All you have to do is to send an e-mail to this > address (repeat): [email protected] . -- You are subscribed. This footer can help you. Please POST your comments to [email protected] or reply to this message. You can visit the group WEB SITE at http://groups.google.com/group/yclsa-eom-forum for different delivery options, pages, files and membership. To UNSUBSCRIBE, please email [email protected] . You don't have to put anything in the "Subject:" field. You don't have to put anything in the message part. All you have to do is to send an e-mail to this address (repeat): [email protected] .
