Yes comrade George, still fighting. Sent from my iPad
On 02 Sep 2011, at 15:41, Tshegofatso Mogaladi <[email protected]> wrote: > 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. 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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. 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