ANC findings in the Malema matter

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Unedited version of the National Disciplinary Commission in the Julius Malema matter, as per ANC website (www.anc.or.za)

NDC Findings

17 April 2012

In the matter between:

JULIUS MALEMA Applicant

and

THE AFRICAN NATIONAL CONGRESS Respondent
NATIONAL DICIPLINARY COMMITTEE

_____________________________________

FINDING

INTRODUCTION

1. On 4 April 2012 the ANC’s National Disciplinary Committee (NDC), acting in terms of the powers entrusted to it by the ANC Constitution, summarily suspended the membership of the applicant for a period of up to 30 days pending the institution of disciplinary proceedings against him arising out of certain public comments he made and which are set out in more detail below.

2. The applicant applied to the NDCA on 5 April 2012 to set aside the temporary suspension imposed by the NDC. The NDC decided not oppose the application.

3. The applicant based his application on the grounds that the NDC breached the ANC Constitution, the rules of natural justice and the Constitution of the Republic of South Africa and advanced the undermentioned arguments in support thereof.

4. The applicant submitted Heads of Argument on 14 April 2012 and confirmed a prior agreement with the NDCA that the application would be decided on the papers.

THE APPLICANT’S ARGUMENTS

A. Applicant’s argument that the NDC breached Rule 25.3 of the ANC Constitution by acting both as the instituting body under that rule and the body to which the instituting body has to refer the charges and, in doing so, the NDC breached the nemo iudex in sua causa rule of natural justice

5. The Applicant’s argument is that the NDC breached a rule of natural justice because the NDC, as the body which instituted the disciplinary proceedings, could not adjudicate the disciplinary proceedings. In other words, the NDC could not be referee and player at the same time.

6. In the view of the NDCA, the nemo iudex in sua causa rule (a person cannot be a judge in his own cause) is designed to achieve procedural fairness and to obviate any semblance of bias.

7. In terms of Rule 25.3 read with the Appendix of the ANC Constitution, the NDC has the right to investigate, conclude that disciplinary proceedings are warranted, institute and refer disciplinary proceedings for adjudication. In the view of the NDCA, there is no conflict between these various competencies.

8. It is established law that the rule against bias only affects the individual members who are part of a structure and not the structure itself.

9. In the view of the NDCA, a classic demonstration of the nemo iudex in sua causa rule is the case where a judge recuses himself or herself from a trial and the trial is subsequently heard by another judge but by the same institution.

10. The ANC Constitution empowers the National Executive Committee of the ANC to appoint up to 9 individual members from amongst its membership and its structures to constitute the NDC.

11. The ANC Constitution also provides for a quorum of 3 members of the NDC to be legally valid and sufficient for it to perform its function of adjudicating disciplinary actions and to institute disciplinary proceedings for very serious violations or offences.

12. In terms of the ANC Constitution, the NDC is the only structure in the ANC which could adjudicate the pending disciplinary proceedings against the applicant.

13. The NDCA finds that the NDC’s act of referring the disciplinary proceedings to itself for adjudication does not, in itself, justify an inference of bias.

14. In the view of the NDCA, the decisive factor, in determining whether the rule has been breached lies in the composition of the NDC when the disciplinary proceedings are actually adjudicated because the nemo iudex in sua causa rule is intended to achieve good administration to ensure that the decision maker is unbiased and that justice is not only done but is seen to be done.

15. In the letter of suspension, the NDC expressly stated that the individual members of the NDC who took the decision to investigate, institute and refer disciplinary proceedings for adjudication would not participate in the subsequent adjudication.

16. In the NDCA’s view, the fact that the NDC did not mention the names of the NDC members in the letter of suspension who took the decision is irrelevant and of no consequence when considering whether the nemo iudex in sua causa rule has been breached.

17. To this extent the NDCA is of the view that the applicant’s argument is premature.

18. The NDCA is also of the view that good administration will not be compromised and there would be no conflict of interest if the NDC members who participated in the decision to institute disciplinary proceedings against the applicant did not participate on the NDC panel which would adjudicate the subsequent disciplinary proceedings.

19. Consequently, the NDCA finds that, subject to observance of the good administration principle above, the NDC, by acting both as the instituting body under Rule 25.3 AND the body to which the instituting body refers the charges for adjudication, would not be in breach of Rule 25.3 of the ANC Constitution and the nemo iudex in sua causa rule.

B. Applicant’s argument that the NDC was not entitled to impose conditions in terms of Rule 25.12(e) because the rule is confined to a member who is an elected representative and the applicant is not an elected representative

20. It is an established rule that suspension of a contract means that a person cannot exercise any rights or receive any benefit under the contract and simultaneously is not obliged to perform any duties or obligations under the contract.

21. Membership of the ANC constitutes a contractual relationship between a member and the ANC and the same rule applies in the case of suspension of membership.

22. In the view of the NDCA, it is axiomatic that the NDC may impose terms and conditions upon a member by virtue of the suspension of his or her contract of membership because the NDC’s right in this regard flows from the common law consequences of the suspension of that member’s contract and not from the ANC Constitution.

23. As such, in the view of the NDCA, it is not necessary for the ANC Constitution to make provision for the imposition of terms and conditions in the case of a member, who is not a public representative, because such provision would, in the circumstances, be superfluous.

24. It follows that it was permissible for the NDC to suspend all the normal privileges available to an ANC member, such as attending and addressing meetings of the ANC in any capacity and commenting on ANC matters, during the applicant’s period of suspension.

25. In the NDCA’s view, the above interpretation can be inferred from Rule 25.12(f) of the ANC Constitution which provides that “the member or public representative shall immediately be informed of such terms and conditions”.

26. In the case of suspension of an ANC member, who is also a public representative, Rule 25.12(e) makes it obligatory on the ANC, to provide terms and conditions which will regulate his or her participation and conduct as a public representative.

27. It is common cause that public representatives represent the ANC in third party fora and for that reason it is incumbent on the ANC to provide terms and conditions to regulate the relationship between the ANC as an organisation and the respective third party forum.

28. Consequently, the NDCA finds that in addition to the common law, it can be inferred from Rule 25.12 of the ANC Constitution that the NDC was entitled to impose terms and conditions after it decided to suspend the membership of the applicant.

C. Applicant’s argument that the NDC failed to detail the exceptional circumstances which would offend against the procedure laid down in Rule 25.12(b), alternatively the exceptional circumstances specified by the NDC do not constitute sufficient grounds for that deviation nor do they disclose a causal link between the circumstances and the deviation

29. The applicant argued that by summarily suspending him before giving him an opportunity to make representations as to whether or not he should be suspended, the NDC acted unlawfully and breached the audi alteram partem rule.

30. It is established law that the audi alteram partem rule in normal circumstances is extended to a person before a decision is made.

31. It is also established law that where exceptional circumstances exist, the audi rule can be dispensed with and afforded to the applicant, as is the case with the present application, after the decision has been made.

32. The nub of the matter, in the view of the NDCA, is whether the NDC’s exercise of its discretion that exceptional circumstances existed was based on substantive facts and whether the NDC’s action was reasonable and justifiable in the circumstances.

33. The NDC, as set out in its letter of suspension, took into consideration the following factors in determining whether exceptional circumstances existed:-

33.1 The fact that the NDC’s finding of guilt against the applicant on two charges was confirmed by the NDCA on 4 February 2012 and the applicant is currently appealing his sanction of expulsion imposed by the NDC on 29 February 2012;
33.2 The applicant’s conduct since 10 November 2011 after he was found guilty by the NDC;
33.3 The applicant’s utterance at a public meeting on 30 March 2012 at the University of Witwatersrand, Johannesburg (after the NDCA’s finding in February 2012) constituted a very serious violation of the ANC Constitution;
33.4 The serious nature of the violation raised a real sense of urgency and necessitated a meeting of the NDC on 2 April 2012;
33.5 Steps had to be taken by the NDC to avoid any further damage to the good name and reputation of the organisation; and
33.6 The NDC had a duty to act and the immediate temporary suspension of the applicant would be in the best interest of the ANC.

34. Based on the past conduct of the applicant, the NDC, in its discretion, concluded that in all likelihood the applicant would continue to make public utterances which would or could bring the ANC into disrepute and that the anticipated future conduct of the applicant constituted an exceptional .circumstance which warranted an immediate decision of temporary suspension without eliciting comment or representations from the applicant before making the decision.

35. The NDCA is of the view that it was reasonable for the NDC to have regard to the applicant’s recurring pattern of similar conduct since 10 November 2011 and the exceptional circumstances set out in paragraph 33 above in arriving at its conclusion.

36. The NDCA confirms that the above factors constitute exceptional circumstances and sufficient grounds to warrant immediate action to have been taken by the NDC.

37. The NDCA finds that in all the circumstances, the departure from Rule 25.12(b) of the ANC constitution was justified for the following reasons:-

37.1 The NDC was obliged to take immediate steps to protect the interest of the ANC;

37.2 Immediate suspension would put a stop to the recurring pattern of the applicant’s behaviour and obviate any further damage to the good name and reputation of the ANC;

37.3 The suspension is a temporary measure pending the institution of disciplinary proceedings against the applicant;

37.4 The exceptional circumstances of this matter warranted such action and it would have been inappropriate to follow normal procedure. Rule 25.12(b) of the ANC Constitution expressly provides for such a procedure; and

37.5 Temporary suspension, pending a disciplinary hearing, was the least invasive action available to the NDC to protect the interest of the ANC.

38. Moreover, when balancing the interest of the ANC and its membership of more than one million members and its position as the ruling party on the one hand with the interest of the applicant on the other, the NDCA confirms the conclusion of the NDC that, in the circumstances, the interest of the ANC would best be served by invoking the provisions of Rule 25.12(c) of the ANC Constitution.

39. The NDCA is also privy to the evidence of the applicant on record that he showed no remorse and did not agree with the NDCA appeal finding.

40. In the circumstances, the NDCA finds that based on the substantive facts the NDC took into account, exceptional circumstances existed in order for the NDC to mitigate any further damage to the good name and reputation of the ANC; that the NDC acted reasonably and was justified in departing from the provisions of Rule 25.12(b) and in invoking the provisions of Rule 25.12(c) to suspend the applicant summarily without first giving him an opportunity to make representations.

41. The NDCA has also taken cognisance of the fact that the applicant did not deny making the utterance on 30 March 2012 but explained that he was merely expressing an opinion on the state of the ANC under the current leadership of President Zuma (Annexure 2).

42. In the view of the NDCA, the applicant’s ex post facto explanation raises a dispute of fact which can only be resolved at the pending disciplinary hearing.

43. Consequently, the NDCA finds that exceptional circumstances existed for the NDC’s decision and that the causal link between the exceptional circumstances and the deviation has been established.

D. The Applicant’s argument that the NDC breached section 16 of the Constitution of the Republic of South Africa Act in that the applicant’s freedom of expression has been violated by the wide ban placed on his conduct

44. It is an established rule that the right of freedom of expression provided for in the Constitution of the Republic of South Africa Act is not absolute.

45. In maintaining discipline in the ANC, it is the ANC’s prerogative and, in the view of the NDCA, reasonable for the ANC to define how its members should conduct themselves in their capacity as members of the ANC.

46. The ANC, through its Code of Conduct, merely regulates the conduct of a member in his or her relationship with the organisation and does not seek to regulate the entire personal conduct and behaviour of a member.

47. When the applicant joined the ANC he subjected himself to the ANC Constitution and its Code of Conduct, in doing so, voluntarily agreed to limit his freedom of expression apropos his relationship with the ANC.

48. In the view of the NDCA, the temporary suspension placed on the applicant is restricted to acts which he would normally be allowed to perform as a member of the ANC and does not seek to regulate any other conduct of the applicant.

49. The NDCA finds that the terms and conditions were not wide but were limited to consequences directly linked to the applicant’s membership of the ANC.

50. In the NDCA’s view, the term, “as an invited guest” should not be read in isolation but must be interpreted restrictively in conjunction with the basket of terms and conditions imposed on the applicant by the NDC and with specific reference to invitations extended to the applicant by the ANC, its structures and its leagues.

51. Consequently, the NDCA finds that the applicant’s freedom of expression has not been infringed by the restrictions placed upon him and that both the horizontal and vertical applications provided for in the South African Constitution have not been breached.

E. The applicant’s argument that the NDC breached the provisions of section 19(1) of the South African Constitution by taking away the applicant’s right as a citizen to belong to a political party of his choice

52. Section 19(1) of the Constitution of the Republic of South Africa deals, inter alia, with the political rights of citizens to make free political choices, including the right to form a political party; to participate in the activities of, recruit members and campaign for a political party and to stand for and hold public office, if elected.

53. The NDCA finds that section 19(1) of the Constitution of the Republic of South Africa is not applicable to the circumstances of this case and, consequently, the applicant’s argument is misplaced.

54. Moreover, the NDCA finds that the applicant does not have a right to be a member of the ANC, both in terms of the South African Constitution and the ANC Constitution.

55. For the above reasons and after consideration of the applicant’s Heads of Argument, the applicant’s application to set aside the summary suspension imposed by the NDC is dismissed.

Dated at Johannesburg this 17th day of April 2012

Decided by

CYRIL RAMAPHOSA
CHAIRMAN
ANC NATIONAL DISCIPLINARY COMMITTEE OF APPEAL

JESSIE DUARTE
MEMBER
ANC NATIONAL DISCIPLINARYCOMMITTEE OF APPEAL

BRIGITTE MABANDLA
MEMBER
ANC NATIONAL DISCIPLINARYCOMMITTEE OF APPEAL

TREVOR MANUEL
MEMBER
ANC NATIONAL DISCIPLINARYCOMMITTEE OF APPEAL

JEFF RADEBE
MEMBER
ANC NATIONAL DISCIPLINARY COMMITTEE OF APPEAL

__________________________________________

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