Comrade Masoga Are tYou Still Intact Cadre? Long tyme. Cde George Pretoria 0722241256
On Fri, Sep 2, 2011 at 3:25 PM, Vincent Masoga <[email protected]> wrote: > 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] . > -- 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. 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