thanks God. How else were we supposed to clean our movement! Glory to the ANC!
On 4/24/12, VC <[email protected]> wrote: > > ANC > *National Disciplinary Committee of Appeal (NDCA)* > > * > PUBLIC ANNOUNCEMENT OF THE NATIONAL > DISCIPLINARY COMMITTEE OF APPEAL (NDCA) > > 24 April 2012, Chief Albert Luthuli House, Johannesburg* > > > RE: APPEAL FINDINGS OF COMRADES FLOYD > SHIVAMBU, SINDISO MAGAQA AND JULIUS > MALEMA > > > INTRODUCTION > > This announcement is being made pursuant to the ANC Constitution which > requires that a public announcement of the outcome of the disciplinary > proceeding be made. > > The Appellants advanced 42 arguments, all of which were dealt with by > the NDCA. These findings are contained in a separate 41 page document > entitled "NDCA Finding", which will be released publicly as a separate > document. > > The Appellants' representative and the Secretary General of the ANC were > given copies of the NDCA Finding prior to this public announcement. > > This public announcement is an extract of the NDCA Finding and sets out > the conclusions of some of the NDCA's preliminary rulings and other > arguments advanced by the Appellants and the NDCA ruling on the sanctions. > > > > PRELIMINARY RULINGS AND COMMENTS BY THE NDCA > > Withdrawal of Appellant Sindiso Magaqa's appeal > > 1. The appeal, which was set down for hearing on 12 April 2012, could not be > proceeded with because the Appellants' legal representatives were not > available and the Appellants elected to instruct another legal > representative > who needed time to familiar himself with the case. > > 2. The NDCA postponed the hearing and it was agreed that the parties > would file > Heads of Argument and the matter would be decided on the written > submissions. > > 3. On 18 April 2012, the last day agreed by the parties by which the > Appellants > were due to file Heads of Argument, comrade Magaqa's legal representatives > sent a letter to the Chairman of the NDCA which stated the following:- > > ANC/SINDISO MAGAQA: WITHDRAWAL OF APPEAL > > 1. We refer to the Notice of Appeal in respect of the Third Appellant Mr > Sindiso Magaqa ("the Third Appellant") which was lodged with the > NDCA on 14 March 2012. > > 2. This serves to notify the NDCA that the Third Appellant hereby > withdraws his appeal and no longer persists with the Notice of > Appeal and the ground stated therein. > > 3. Find herewith the combined heads of argument on behalf of the > remaining appellants, namely, comrade Julius Malema and Floyd > Shivambu. > > 4. We trust that the above is in order and regret any inconvenience that > may be caused by the withdrawal. > > D Mpofu > M Sikhakhane > Representatives of the Appellants > Chambers Sandton > 18 April 2012 > > 4. The NDC imposed, as part of its sanction, the condition that cde > Magaqa should make a public apology to cde Malusi Gigaba within 15 > days after the NDC pronounced its sanction on 29 February 2012. > > 5. Cde Magaqa's legal representatives did not furnish any evidence to > the NDCA > that the condition in paragraph 4 above has been complied with. > > 6. Cde Magaqa's legal representatives have also not provided any > evidence to the > NDCA that the withdrawal of the appeal was done in agreement with the > Respondent. > > 7. The fact that cde Magaqa mentioned in his Heads of Argument, filed on 18 > April 2012, that he would be withdrawing his appeal is of no consequence. > > 8. The NDCA is of the view that cde Magaqa was obliged to seek and obtain > the consent of the Respondent to the withdrawal of the appeal especially > in light of the Respondent's argument (in its Heads of Argument filed on > 11 April 2012) that the NDC erred on the side of leniency by > suspending cde Magaqa's 3 year sanction. > > 9. Consequently, the NDCA finds that the unilateral withdrawal of the > appeal would defeat the achievement of justice and be prejudicial to > the Respondent. > > 10. In the view of the NDCA, the intention of cde Magaqa, in withdrawing > the appeal, was to frustrate the Respondent by precluding it from > arguing for a possible increase in the sanction. > > 11. The NDCA is of the view that the withdrawal of the appeal at this late > stage, after cde Magaqa and his legal representatives were made aware of > the Respondent's opposition to the NDC's sanction, is an abuse of process. > > 12. In the NDCA's view, justice must be seen to be done and finality in this > matter should be reached. The unilateral withdrawal of the appeal would > defeat these objectives. > > 13. In his Notice of Appeal, cde Magaqa argued that the NDCA is entitled > to take > into account that in the intervening period he has apologised > unconditionally to Cde Gigaba. > > 14. The NDCA dismissed cde Magaqa's argument on the following grounds:- > > 14.1 Cde Magaqa failed to provide evidence that the condition > imposed by the NDC was complied with; > > > 14.2 Cde Magaqa's argument that the NDCA was expected to take > into account that an unconditional apology was made to cde Gigaba > (details of which were not provided to the NDCA) demonstrates cde > Magaqa's disregard and disrespect for ANC disciplinary structures > and disciplinary procedures; > > 14.3 In its letter of withdrawal, cde Magaqa's legal representatives did not > make any reference at all to the public apology nor indicate whether > the withdrawal of the appeal was done in agreement with the > Respondent; > > 14.4 The Respondent will be prejudiced by the unilateral withdrawal of > the appeal; and > > 14.5 Finality of this matter and justice will not be achieved by cde > Magaqa's conduct. > > 15. Consequently, the NDCA, in its discretion and in the interest of > justice, has > decided not to allow the withdrawal of cde Magaqa's appeal. > > > Nature of ANC disciplinary proceedings > > 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. > > 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 or whether the charged member was provoked into > committing the act of misconduct. > > > Failure by Appellants to accept that they were Found Guilty > > After perusing the record, the NDCA is of the view that the Appellants > did not > appreciate nor accept the basis upon which they were found guilty. > > The NDCA is of the view that the failure by the Appellants and their > representatives to accept that the Appellants were found guilty by a > legitimate > structure of the ANC is at the root of the real issue in this appeal > proceeding. > > The Appellants' disregard for the rulings of the NDC and NDCA > > The NDCA has noted with concern the Appellants' persistent > claim that:- > > .the disciplinary proceedings were instituted to settle > political scores; > > .members of the NDC and NDCA were biased; and > > .the proceedings were irregularly conducted by the NDC > and the NDCA. > > The various applications brought by the Appellants in this regard > were considered and dealt with by the NDC and the NDCA (in the first > appeal) and full reasons were provided for their dismissal. > > Notwithstanding compliance with due process and fairness by these ANC > structures, the Appellants persist with their claims and have peppered > their Heads of Arguments with innuendos which show a complete > disregard for the rulings of the NDC and the NDCA. > > The Appellants also argued that President Zuma pre-judged the outcome of > these proceedings at a meeting in Port Elizabeth and were prepared to > show a video recording to support their argument. The innuendo in the > argument > is that President Zuma controls and influences the NDCA remotely. This > innuendo advanced by the Appellants is devoid of truth and undermines the > integrity of the members of the NDCA. This is rejected. > > > APPELLANTS' LEGAL ARGUMENTS > > The Appellants argued that the NDC committed a fundamental > error of justice in relying upon a non-existent version of Article > 11.2 of the ANC Youth League Constitution when the applicable > version was submitted to the NDC and duly admitted into evidence > > The NDCA finds that the appropriate forum for the Appellants to have > dealt with the issue of the ANC Youth League Constitution was in the > first appeal because the Appellants themselves raised the issue as a > ground of appeal in the first appeal to the NDCA. > > This would have enabled the Respondent to test the veracity of the latest > version of the ANC Youth League Constitution, in particular whether due > notice of the proposed amendment was given to the ANC, whether prior > notification of the proposed amendment was given to delegates to the > ANC Youth League Conference in June 2011 and whether the > amendment was properly effected in terms of the ANC Youth League > Constitution at the ANC Youth League Conference. > Even if it is assumed that the Appellants had presented argument on the > latest version of the ANC Youth League Constitution in the first appeal, > then, in the view of the NDCA, the current formulation of Article 11.2 > would have been rejected because it would have created a legal > impossibility and resulted in an accountability free zone for Youth League > members and rendered them immune to discipline by the ANC. > > Consequently, the NDCA finds that the mere submission in evidence of > the latest version of the ANC Youth League Constitution with the > amended Article 11.2 at the NDC mitigation hearing, which was dealing > with the issue of sanctions, is of no consequence. > > In the absence of cogent evidence that the 2011 version of the ANC Youth > League Constitution of 2011 is authentic, the NDCA finds that the > document is inadmissible in evidence and directs the ANC to investigate > this matter. > > The NDCA finds that the NDC was entitled to place reliance on the > NDCA's finding that "in terms of the articulation between the ANC > Constitution and Article 11.2 of the ANC Youth League Constitution, any > sanction imposed by the NDC resulting in the imposition of a penalty of > suspension or expulsion from the ANC shall be applicable to the > Appellant's membership of the ANC Youth League". > > > The Appellants argued that the 14 day time limit imposed by the > NDCA was unauthorised, unconstitutional and inherently unfair > > There is no requirement in the ANC Constitution for the NDCA to canvass > any issue with the parties before making its ruling. > > The NDCA publicly announced its Finding on the conviction on 4 February > 2012 and the NDC mitigation hearing commenced on 13 February 2012. > In the context of a domestic disciplinary hearing, the NDCA is of the view > that sufficient opportunity was afforded to the Appellants to make the > necessary preparations and commence with the mitigation hearing. > > The Appellants argued that the NDC erroneously exceeded the > obligatory time limit of 6 months imposed by Rule 25.10 of the ANC > Constitution > > The NDCA took cognisance of the fact that the NDC concluded the > disciplinary hearings on 10 November 2011, within the 6 month period > prescribed by Rule 25.10 of the ANC Constitution, when it delivered its > Findings on the convictions and sanctions in respect of the four > disciplinary > cases before it. That was a final judgment and concluded the disciplinary > proceedings that were commenced on 19 August 2011. Thereafter the NDC > was functus officio. > > The NDCA dismissed the Appellants' argument on the following grounds:- > > .Rule 25.10 is intended to place a positive obligation on the ANC to > dispose of disciplinary proceedings expeditiously and can only be invoked > by a charged member if he or she proves that an ANC disciplinary > committee has been dilatory in the execution of its task; > > .The long intervals between sittings of the NDC, primarily due to the non- > availability of the Appellants' witnesses and their legal representatives > has, in the view of the NDCA, frustrated the achievement and underlying > objective of Rule 25.10. After examining the record, the NDCA finds that > no fault can be attributed to the NDC for any delays occasioned; and > > .In any event the NDC, out of excessive caution, sought and was granted an > extension of time as provided for in Rule 25.10 by the NDCA. This was > disclosed to the Appellants at the sitting of the NDCA on 12 April 2012. In > seeking such extension, the NDC was not obliged to notify the Appellants > as the ANC Constitution does not make notice to the parties a requirement. > > The Appellants argued that the NDC failed to give them adequate > opportunity to be present when the sanction was imposed and > imposing the sanction in the absence of the Appellants was an > irregularity > > In terms of Rule 25.11 of the ANC Constitution the only obligations on a > disciplinary committee are to report the outcome of the disciplinary > proceeding, in this case, to the Secretary General of the ANC and to > publicly announce the decision. > > There is no requirement in the ANC Constitution for an ANC disciplinary > committee to give any notice to a charged member as to when it would be > delivering its Finding or to deliver its Finding in the presence of a > charged > member. > > The Appellants' reliance on Appendix of the ANC Constitution to support > its argument is relevant to the time during which disciplinary proceedings > are actually conducted because it refers to witnesses and interpreters who > are entitled to be present. In the view of the NDCA, this provision is not > applicable once the proceedings have been concluded. > > If any disciplinary committee of the ANC takes steps to inform the charged > member of the date upon which its Finding is to be made or to deliver its > Finding in the presence of the charged member, such action would be an > act of courtesy on the part of the disciplinary committee concerned and > not a requirement in terms of the ANC Constitution. > > > Appellants argued that the NDC failed to afford the Appellants > adequate opportunity to present all their evidence in mitigation > The NDCA is of the view that the Appellants had sufficient opportunity to > have their witnesses available. > > Furthermore, the NDCA is of the view that the Appendix to the ANC > Constitution provides for the production of relevant documentation. From > the correspondence between the parties, it appears that the Appellants > rejected the NDC's offer to present some of the mitigation evidence in > affidavit form. The NDCA is of the view that the NDC's offer was not > intended to substitute the Appellants' right to call witnesses but to > supplement the oral evidence given at the mitigation hearing. > > Consequently, the NDCA finds that the Appellants' argument that the NDC > failed to afford them adequate opportunity to present all their evidence in > mitigation is dismissed. > > Appellants argued that the NDC erred in failing to state which portions > of the sanctions were related to which separate charge and consequently > rendered it impossible for the Appellants to properly exercise their > fundamental right of appeal as enshrined in the ANC Constitution > > Having considered the arguments of both parties, the NDCA rules as > follows:- > > .In terms of the Appendix to the ANC Constitution, a > disciplinary committee is required to make a finding based on > the facts and evidence and impose an appropriate sanction > ranging from reprimand to expulsion. > > .The discretion given to a disciplinary committee in terms of > the ANC Constitution is to consider all the convictions > cumulatively and impose an appropriate sanction. > > .Unlike in a criminal trial, there is no obligation on a > disciplinary committee to impose a sanction in respect of > each charge for which a charged member has been found > guilty. > > .The Appellants' argument that the imposition of a single > sanction would be prejudicial and would result in the > duplication of convictions and sanctions is without > substance because a single sanction would not necessarily > result in a duplication of sanctions and cannot possibly > result in a duplication of convictions. > > .Even if it were permissible, the imposition of different > sanctions against a charged member in a disciplinary > hearing would result in the impossibility of deciding which > sanction to enforce. For example, if a charged member is > reprimanded on Charge One and suspended on Charge Two, > there would be uncertainty as to which sanction to enforce. > > .It is for this reason that the ANC Constitution, in the view of > the NDCA, directs a disciplinary committee at the end of the > disciplinary proceedings to discuss the issues raised at the > disciplinary proceedings in private and make a finding based > on the facts and evidence of the case and decide a penalty. > > Consequently, the Appellants' argument that the NDC's failure to state > which portions of the sanctions were related to which separate charge > rendered it impossible for the Appellants to properly exercise their > fundamental right of appeal as enshrined in the ANC Constitution is > dismissed. > > Grounds of appeal based on the merits -- Appellant Floyd Shivambu > > Cde Floyd Shivambu was found guilty on two counts of contravening Rule > 25.5 (o) of the ANC Constitution for swearing at a journalist and for > issuing, in his capacity as spokesperson of the ANC Youth League, a > statement on Botswana in contravention of ANC policy. > > The Appellant advanced 8 arguments on the merits, all of which were > dismissed by the NDCA and full reasons were provided in the NDCA Finding. > > One of the arguments advanced by Appellant Shivambu was that the NDC > failed to take into account the personal circumstances of the Appellant, > more particularly that he was an employee of the ANC Youth League > > The NDCA is of the view that disciplinary action is focused primarily on > the contractual relationship between the organisation and the charged > member.At the end of the disciplinary hearing a disciplinary committee > could retain the membership contract (by reprimanding the member or > imposing community service), suspend the contract (for a period of time > and subject to conditions) or cancel the contract (by expulsion). > > The only criteria for joining the ANC as a new member is that a person > must be a South African citizen and at least 18 years old. > > In the discharge of its duties, an ANC disciplinary committee is not > obliged to consider the personal circumstances of the Appellant and the > consequences that disciplinary action would visit upon him in his > private life because these factors are not considered when a person > joins the ANC and are not relevant to the contractual relationship > between the ANC and its members. > > The NDCA is satisfied with the approach adopted by the NDC which did not > make any finding with regard to the employment contract between the > Appellant and the ANC Youth League. > > Consequently, the Appellant's argument that the NDC failed to take into > account his personal circumstances, more particularly that he was an > employee of the ANC Youth League, is dismissed. > > Grounds of appeal based on the merits -- Appellant Sindiso Magaqa > > Cde Sindiso Magaqa was found guilty of contravening Rule 25.5 (o) of the > ANC Constitution for issuing, in his capacity as Secretary General of the > ANC Youth League, a derogatory and potentially defamatory statement about > cde Malusi Gigaba. > > The Appellant advanced 7 arguments on the merits, all of which were > dismissed by the NDCA and full reasons were provided in the NDCA Finding. > > Grounds of appeal on the merits -- Appellant Julius Malema > > Cde Julius Malema was found guilty of contravening Rule 25.5 (c) and > Rule 25.5 (i) of the ANC Constitution for expressing his personal views > at a press conference of the ANC Youth League on 31 July 2011 which > sought to portray the ANC-led government and the ANC leadership under > President Zuma in anegative light in relation to the African Agenda and > which had the potential to sow division and disunity in the ANC AND for > expressing his personal views on Botswana which contravened ANC policy. > > The Appellant advanced 16 arguments on the merits, all of which were > dismissed by the NDCA and full reasons were provided in the NDCA Finding. > > Two of the arguments advanced by Appellant Malema are the following:- > > The Appellant argued that the NDC's erroneous view that the he did not > accept the NDC's finding of guilt is irreconcilable with the evidence > > The Appellant argued that the NDC's erroneous view that the Appellant > did not accept the finding of guilt is irreconcilable with the evidence > that he was pleading with the NDC, inter alia:- > > .To consider stripping him of his leadership position as the > President of the ANC Youth League and even as PEC member > of the Limpopo Province; > > .To impose a condition for suspension that he should finish > his Political Science degree in record time; and > > .To bar him from holding any leadership positions for a period > of time. > > The NDCA considered the Appellant's evidence as a whole and found it to > be contradictory. On the one hand the Appellant was pleading to the NDC > not to take away his membership but on the other, he did not show any > remorse or respect for the ANC Constitution and its structures. > > Having had regard to the Appellant's evidence as a whole, the NDCA is > not persuaded by the sincerity of the Appellant's plea. The NDCA > confirms the NDC's finding that the Appellant did not accept his finding > of guilt and was not capable of rehabilitation. > > Consequently, the Appellant's argument that the NDC's erroneous view > that the he did not accept the NDC's finding of guilt is irreconcilable > with the evidence is dismissed. > > The Appellant argued that the NDC erred in failing to appreciate the > conceptual difference between not respecting the disciplinary processes > of the NDC and the NDCA and contesting the contents of their outcomes > > The Appellant argued that the NDC wrongly equated these two unrelated > concepts and thereby came to the wrong conclusion that the Appellant did > not respect the ANC Constitution despite evidence to the contrary. > > The Appellant also argued that the NDC ought to have found that, given > the possibility of the decision of the NDCA being overturned by the NEC > or the National Conference, which are the highest decision making bodies > in the ANC (i.e. higher than the NDC/NDCA), then the Appellant is quite > entitled to continue contesting the correctness of the decisions of the > lower structures. > > The NDCA finds as follows:- > > .The Appellant's understanding of the ANC Constitution is > fundamentally flawed; > > .The NDC, NDCA, NEC and National Conference are not in a > hierarchical relationship as argued by the Appellant; > > .The NDC and NDCA are structures appointed by the NEC to > perform a duty on behalf of the ANC relating to discipline; > > .The National Conference is the supreme ruling and > controlling body of the ANC which is comprised of delegates > elected by branches of the ANC and representation from the > Provincial Executive Committees, the ANC Veterans League, > the ANC Youth League and the ANC Women's League. The > National Conference meets once every five years. > > .The NEC is the highest organ of the ANC between national > conferences and has the authority to lead the organisation, > subject to the provisions of the ANC Constitution. > > .According to the ANC Constitution, decisions of the NDCA are > final. > > .The NEC may, in its discretion, review a decision of the > NDCA. The NEC's power of review does not encompass a > further appeal, as argued by the Appellant, but affords the > NEC an opportunity to review decisions of the NDCA to > satisfy itself that natural justice has been afforded to a > charged member. > > By virtue of the Appellant's flawed understanding of the ANC > Constitution, the NDCA further finds that the Appellant's argument of a > conceptual difference between not respecting the disciplinary processes > of the NDC and the NDCA and contesting the contents of their outcomes is > misplaced. > > The NDCA has not found any evidence to the contrary, as argued by the > Appellant, which would have persuaded it to come to a different > conclusion to that of the NDC. > > Consequently, the Appellant's argument that the NDC erred in failing to > appreciate the conceptual difference between not respecting the > disciplinary processes of the NDC and the NDCA and contesting the > contents of their outcomes is dismissed. > > > NDCA RULING > > Having considered the grounds of appeal and the Heads of Argument, the NDCA > rules as follows:- > > > APPEAL OF FLOYD SHIVAMBU > > 1. The appeal is dismissed. > > 2. The Respondent's argument that the sanction of the Appellant be > increased to a suspension of 5 years was considered by the NDCA and > rejected. > > 3. The sanction imposed by the NDC that the Appellant's ANC membership > be suspended for a period of 3 years is confirmed. > > 4. This sanction is applicable to the Appellant's membership of the ANC > Youth League. > > > APPEAL OF SINDISO MAGAQA > > 1. The appeal is dismissed. > > 2. Having had regard to all the circumstances concerning this appeal, the > NDCA, in the exercise of its discretion, varies the sanction imposed by the > NDC as follows:- > > "The Appellant's ANC membership is suspended for a period of 1 year, > which shall come into operation with immediate effect". > > 3. This sanction is applicable to the Appellant's membership of the ANC > Youth League. > > 4. Consequently, cde Sindiso Magaqa shall vacate his position as Secretary > General of the ANC Youth League. > > > > APPEAL OF JULIUS MALEMA > > 1. The appeal is dismissed. > > 2. With regard to the Appellant's disciplinary hearing held in May 2010, the > sanction imposed by the NDC that the Appellant's ANC membership be > suspended for a period of 2 years is confirmed. > > 3. In respect of the present disciplinary hearing, the NDCA confirms the > sanction imposed by the NDC that the Appellant be expelled from the ANC. > > 4. These sanctions are applicable to the Appellant's membership of the ANC > Youth League. > > > Dated at Johannesburg this 24th day of April 2012 > > > CYRIL RAMAPHOSA > CHAIRMAN > ANC NATIONAL DISCIPLINARY COMMITTEE OF APPEAL > > > JEFF RADEBE > MEMBER > ANC NATIONAL DISCIPLINARY COMMITTEE OF APPEAL > > > JESSIE DUARTE > MEMBER > ANC NATIONAL DISCIPLINARY COMMITTEE OF APPEAL > > > TREVOR MANUEL > MEMBER > ANC NATIONAL DISCIPLINARY COMMITTEE OF APPEAL > > > BRIGITTE MABANDLA > MEMBER > ANC NATIONAL DISCIPLINARY COMMITTEE OF APPEAL > > -- > 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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