The ANC is a national liberation movement. It was formed in 1912 to unite the African people and spearhead the struggle for fundamental political, social and economic change.
The ANC's key objective is the creation of a united, non-racial, non-sexist and democratic society.
This means the liberation of Africans in particular and black people in general from political and economic bondage. It means uplifting the quality of life of all South Africans, especially the poor.
The ANC is in an alliance with the South African Communist Party (SACP) and the Congress of South African Trade Unions (COSATU). Each Alliance partner is an independent organisation with its own constitution, membership and programmes. The Alliance is founded on a common commitment to the objectives of the National Democratic Revolution, and the need to unite the largest possible cross-section of South Africans behind these objectives.
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10 November 2011, Chief Albert Luthuli House, Johannesburg
PREAMBLE The ANC Constitution requires public announcement of the outcome of a disciplinary proceeding. The purpose of this media conference is to announce the outcome of disciplinary proceedings involving comrades Julius Malema, Ronald Lamola, Pule Mabe, Sindiso Magaqa, Kenetswe Mosenogi and Floyd Shivambu.
Before dealing with the charges and findings, and in response to commentary and speculation by ANC members, political commentators and the public, the National Disciplinary Committee (NDC) wishes to contextualise the process and their considerations.
THE ANC CONSTITUTION
The NDC is accordingly satisfied that disciplinary proceedings were properly initiated and that proper process was followed.
PREVAILING CIRCUMSTANCES DURING THE HEARING
The ANC`s Constitution and Code of Conduct require members of the ANC to respect the Constitution and structures of the ANC and to place their energies and skills at the disposal of the organisation.
Prior to the commencement of the disciplinary hearings, those charged, together with other national leaders of the ANC Youth League addressed meetings of the ANC Youth League throughout the country urging their members to support those charged.
A specific call was made on 23 August 2011 by the ANC Youth League Secretary General that "All young people in South Africa must come out in full support of our leaders, because they are being charged for championing our demands of free education and the nationalisation of mines." This call was followed by further calls for support for those charged.
At the commencement of the hearing on 30 August 2011 there were unprecedented violent demonstrations outside Luthuli House causing disruption and chaos in the City of Joburg.
Throughout the hearing statements have been made on public platforms, by some of those charged, containing allegations and innuendo about the process of the disciplinary hearing, ulterior motives and predetermined outcomes of the hearing
The rulings and penalties decided on by the NDC are not determined by the circumstances and factors prevailing during the hearing. The NDC would like to remind all ANC members and leaders that the NDC is a structure appointed by the NEC of the ANC tasked with the responsibility to consider any violation of the ANC constitution based on the evidence before it. The rulings and penalties are determined by the NDC in private, whereafter the outcome of the disciplinary proceeding is reported to the Secretary-General of the ANC and announced to the public.
AIMS AND OBJECTIVES AND CHARACTER OF THE ANC
The Constitution of the ANC sets out its aims and objectives and character in the preamble and in the rules of the Constitution. In particular, the preamble to the constitution affirms that
"...the fundamental goal of the ANC remains to construct a united, non-racial, non-sexist, democratic and prosperous society in South Africa"
Rule 2, the aims and objectives set out the intent of the ANC
Rule 3, which describes the character of the ANC, contains clauses particularly pertinent to the charges considered:
The NDC draws the attention of ANC members and leaders at all levels in the organisation to these clauses in particular and reminds ANC members and leaders of the solemn commitment made at the time of joining the ANC to "defend the unity and integrity of the organisation and its principles, and combat any tendency towards disruption and factionalism".
THE 3RD ANC NATIONAL GENERAL COUNCIL
The 3rd National General Council (NGC) of the ANC which took place from 20 to 24 September 2010 directed that:
"....for the ANC to remain strong and effective, discipline is a non-negotiable that must be enforced at all levels of membership and leadership, without fear or favour."
On programmatic issues towards 2012,
"The delegates overwhelmingly want the 3rd NGC to go down in history as the gathering that marked a decisive turning point in tackling, arresting and reversing the negative tendencies that have eroded and threaten to erode the political integrity and moral standing of the ANC among our people. The 3rd NGC has to be remembered as the gathering that went beyond condemning sins of incumbency and other misbehaviour such as ill-discipline and factionalism. From now onwards, decisive action has to be taken by the leadership and membership to renew our movement and fight tenaciously against any tendency to erode the character, principles, core values and culture of the ANC."
On Unity and Cohesion of the movement, the National General Council:
"…criticised the NEC for not being firm and consistent in enforcing discipline among all ANC members, including among NEC members. Acts of ill-discipline in the constituent organs of the ANC such as the Leagues and public attacks by our Alliance partners have a direct negative bearing on the image and integrity of the ANC in society. Inconsistent application of rules and inactions were roundly condemned by the commissions. The NEC in particular and all constitutional structures in general are called upon to act with firmness, fairness and consistency in enforcing Rule 25 of the ANC Constitution. There should be no confusing signals and messages from the leadership on matters of discipline and integrity."
Finally, the Declaration of the NGC states that:
"...Council was frank in acknowledging that tendencies of ill discipline and misconduct had set in within various structures of the movement. This 3rd National General Council, the delegates resolved should mark a decisive turning point in addressing all the negative tendencies that eroded and pose danger of eroding the organisational integrity and very character of the ANC.
In this regard delegates stated without equivocation that there should not be confusing signals and messages from the leadership on matters of discipline.
The responsibility to assert the core values and principles of our movement rests with every leader, every cadre, every member and every supporter of the ANC. These are, among others a steadfast adherence to the interests of the people, unity, selflessness, sacrifice, collective leadership, humility, honesty, discipline, hard work, internal debate, constructive criticism and self-criticism and mutual respect"
The current disciplinary proceeding are the first proceedings before the NDC following the NGC and it is incumbent upon the NDC to observe the injunction of the NGC. Argument was presented to the NDC by those charged that there must be consistency in dealing with matters of discipline and the NDC concurs with this. Accordingly, all levels of leadership are urged to ensure that they indeed act with firmness, fairness and consistency in addressing discipline in the organisation. The NDC is also cogniscant that those charged are national leaders of the ANC Youth League and is of the view that their leadership positions impose on them a responsibility to conduct themselves, in all respects, in an exemplary manner, serving as role models to young people.
PART 2: SUMMARY OF NDC FINDINGS
Six members of the ANC, who are also members of the National Executive Committee of the ANC Youth League, were charged with various acts of misconduct in terms of the ANC Constitution. Four separate hearings were held between 30 August and 6 November 2011. The charged members requested that the findings in all four (4) hearings be made at the end of the proceedings This morning, all six (6) respondents were informed of the findings against them. By agreement the findings against cde Malema were presented to his representatives. Thereafter the outcome of the hearings were reported to the Secretary General of the ANC. This announcement to the public is in accordance with Rule 25.11 of the ANC Constitution. The findings in the four disciplinary hearings run into one hundred and thirty six (136) pages. The findings follow a particular format.
It provides:-
CROSS-CUTTING AND LEGAL ARGUMENTS
During the proceedings the following cross-cutting issues and legal arguments were raised and resolved as follows: 1. Argument that the disciplinary proceedings were not validly instituted in accordance with the ANC Constitution.
The argument that the ANC Youth League is autonomous and therefore independent of the ANC
In deciding this issue, the NDC took into account:-
In the understanding of two of the respondent`s witnesses the autonomy of the Youth League was qualified but the Youth League had the freedom of organizational independence and the freedom to develop policy for consideration and possible adoption by the ANC.
The Constitution of the ANC Youth League attributes the existence of the Youth League to the ANC and specifically provides that it shall be located within the overall structure of the ANC. This is reinforced by the dissolution clause which provides that its assets shall vest in the ANC upon dissolution.
The main objective of the Youth League is to support and reinforce the ANC and Rule 7.4 of the ANC Constitution provides a constitutional mandate for the Youth League to achieve this objective.
Comrade Winnie Mandela testified that the Youth League was autonomous in every respect except financially.
"Autonomous" is defined in the ANC Constitution and, in the view of the NDC, the operative word in the definition is "operate" and not the word "independently."
The fact that the Youth League has chosen, in its Constitution, to be a legal persona that would enable it to hold and alienate property and enter into agreements does not make it independent of the ANC. These powers, in the view of the NDC, speak to a degree of organizational independence. This organizational independence is, in turn, circumscribed by Rule 7.4 of the ANC Constitution which provides that the Youth League constitution shall not be in conflict with the ANC Constitution and policies of the ANC.
Moreover, Article 11.2 of Schedule A of the Youth League Constitution expressly subjects Youth League members to be sanctioned by disciplinary committees of the ANC and the Youth League by virtue of this provision, in effect, undertakes to ensure its enforcement. In the NDC`s view, this provision, on its own, detracts from the argument that the ANC Youth League is independent.
In summary, if the Youth League seeks to operate outside of the ANC Constitution and policy, it will, in the NDC`s view, be acting outside the constitutional doctrine of legality of the ANC Constitution and existing ANC policy. In other words, the ANC Youth League would be operating unlawfully.
On an analysis of all the evidence, the NDC is of the view that the ANC Youth League, like the Womens` League and Veterans League, has a degree of organizational autonomy but is not independent of the ANC.
Consequently, the respondent`s defence that the ANC Youth League is autonomous and therefore independent of the ANC is rejected.
The argument that the ANC deals differently with alliance partners and autonomous bodies and is therefore inconsistent
Put simply, the argument is that the ANC treats its alliance partners, COSATU and the SA Communist Party, differently from the Youth League and, by virtue of this conduct, is inconsistent.
This argument, in the view of the NDC, is misplaced for the following reasons:-
Consequently, the NDC is of the view that the Youth League and the ANC`s alliance partners are not in the same relationship with the ANC.
As such, any comparison as to how the ANC relates to the Youth League and its alliance partners, to determine consistency, is misplaced.
In any event, the NDC is of the view that any value judgment about consistency or inconsistency can only be made over a period of time and after evaluating a number of events. Other than a reference to one incident concerning COSATU, the respondents have not provided any evidence of incidents over a period of time to enable the NDC or any reasonable observer to make a finding of inconsistency on the part of the ANC.
The argument that the ANC Youth League has traditionally been militant and therefore the conduct of the current leadership should not be judged differently
The NDC agrees with this proposition and does not believe that the current ANC Youth League administration should act or be judged any differently from previous administrations.
The common denominator is that the ANC, for most part of its existence since 1912, has had a Code of Conduct to regulate the conduct of its members.
In the view of the NDC, the decision whether to discipline or not lies in a fine line or threshold between militancy and robust expression on the one hand and ill-discipline on the other. Once that line has been crossed or threshold breached, one could expect to be disciplined.
All members of the ANC, without exception, are subject to the ANC Constitution and its Code of Conduct. In the NDC`s view, ill-discipline, in the guise of militancy and robust expression, cannot exempt any member from being sanctioned nor can it be a licence for reckless conduct.
The argument that disciplinary proceedings should not be used to settle political scores as provided for in Rule 25.2 of the ANC Constitution
The NDC agrees that the ANC Constitution expressly prohibits the use of disciplinary proceedings to stifle debate, deny any member of his or her democratic right or be used to solve private problems.
Generally, whether such prohibitions are in play can be established from the Charge itself.
For instance, if a member is charged for an utterance he or she never made or an act that he or she never committed but which is attributed to him or her in a charge, that allegation in itself should be sufficient for any disciplinary tribunal to be concerned about the legitimacy of the charge.
In terms of Rule 25.2 such disciplinary tribunal is obliged to satisfy itself that the conduct of the charged member (act or utterances) constitutes a violation of the ANC Constitution or an offence affecting the organization as expressly provided in Rule 25.2 of the Constitution.
In the present disciplinary hearings the respondents did not deny making the utterances which they were alleged to have made.
In the face of such formal admissions, there was no rational basis or need thereafter for the NDC to consider whether the disciplinary proceedings were instituted for any illegitimate purpose.
The argument that Youth League members would still retain their membership and positions in the Youth League even if expelled from the ANC
This submission was based on Rules 7.4. and 7.5 of the ANC Constitution which provide, inter alia, that the Youth League will function as an autonomous body and that members of the ANC Youth League over the age of 18 are expected to play a full part in the general political life of the ANC.
The implication of this argument, as understood by the NDC, is that in terms of the ANC Constitution, members of the Youth League do not necessarily have to become members of the ANC.
Consequently, it would follow, according to this argument, that if a Youth League member is a member of the ANC, the outcome of disciplinary proceedings against that member in his or her capacity as an ANC member would not affect that member`s membership of the Youth League.
The NDC was of the view that the argument was untenable for the following reasons:-
11.1 " A disciplinary proceeding of the Youth League may not interfere with a person`s rights and duties as a member of the ANC, unless such rights or duties are exercised in an ex-officio capacity on behalf of the Youth League.
11.2 A person, who has been found guilty by an ANC disciplinary proceeding resulting in the imposition of the penalties of suspension, temporary/forfeiture of membership rights or expulsion, such penalties shall have the same application in all structures of the ANC Youth League."
The provisions of Article 11 above explicitly postulate two outcomes.
In other words, it is not a defence for a Youth League member charged by the ANC to raise the argument that a sanction imposed by an ANC disciplinary committee would not affect his or her status as a member of the Youth League.
The ANC Youth League, by express provision in its Constitution, has subjected its members to and has undertaken to respect the outcome of ANC disciplinary proceedings against ANC members who are also Youth League members.
Consequently, a Youth League member, by agreeing to be bound by the provisions of Article 11.2, has consented to the jurisdiction of the ANC over his or her membership of the Youth League.
It also means that the Youth League itself shall be under a constitutional obligation to give effect to any decision of an ANC disciplinary committee which affects its members and to take all steps necessary to ensure that the sanction is enforced.
The ruling of an ANC disciplinary committee against a Youth League member is not limited to expulsion but extends to suspensions.
Consequently, if the respondents, are expelled or suspended by the ANC, that ruling would affect and be applicable to their membership of the Youth League and they would no longer be permitted to participate in the Youth League in any capacity.
FIRST HEARING – THE HEARING INVOLVING FIVE MEMBERS
In this hearing, comrades Julius Malema, Ronald Lamola, Pule Mabe, Sindiso Magaqa and Kenetswe Mosenogi were charged for contravening Rule 25.5 (q) And Rule 25.5 (o) of the ANC Constitution for deliberately disrupting a meeting of the ANC National Officials and for undermining the Secretary General of the ANC on 8 August 2011.
Finding of the NDC
Impact of the ANC disciplinary proceedings on membership of the ANC Youth League
Pursuant to Article 11.2 of Schedule A of the Constitution of the ANC Youth League, this ruling is applicable to the respondents` membership of the ANC Youth League.
Sanction
Factors taken into account for the purpose of sanctioning
Consideration of an appropriate sanction
Like any other organisation, there is an unwritten culture of respect in the ANC. One sees it in practice every day. For instance, older members of the ANC are shown respect in the organisation, irrespective of their positions in the organisation. It is unfortunate that the respondents did not respect this culture.
Cabinet Ministers and other key officials of government are generally afforded security protection, because any serious physical injury to them, or even death, could have a destabilising effect on the country and on government`s ability to discharge its mandate. The respondents, as senior leaders of the ANC Youth League, should have realised the security risk their action posed. In this regard the misconduct of the respondents is regarded as a serious offence.
The ANC, as a liberation movement and the ruling party of a sovereign state governing the lives of about 50 million people, is expected to conduct its business in a professional manner. Discipline is necessary for the ANC to function optimally. South African society and the international community expect no less.
The NDC took the view that the respondents, as ANC members and senior leaders of the ANC Youth League, are expected to shine as beacons of of the values of the ANC, and set an example to the millions of young people in South Africa, both Black and White.
It is the responsibility of the Youth League leaders to represent the hopes and aspirations of the youth of South Africa. The starting point on this journey is to acknowledge discipline as the foundation for any intended programme of action.
As potential future leaders of South Africa, the respondents have the responsibility of sending a strong signal of maturity and respect for authority. In the view of the NDC, this would be an appropriate moment for the respondents to reflect and stop their ill-discipline.
The letter of apology from the respondents was accepted as a mitigating factor.
Having considered all these factors, the NDC imposes the following sanction:-
The respondents have the right to appeal to the NDCA within 14 days.
SECOND HEARING – THE HEARING INVOLVING CDE SINDISO MAGAQA
The respondent, comrade Sindiso Magaqa, was charged for contravening Rule 25.5(o) of the Constitution of the African National Congress by, in a pre-meditated manner, prejudicing the integrity or repute of the organisation, by making derogatory remarks about an NEC member thereby creating division within the ranks or membership of the ANC.
The alleged act of misconduct was that on 2 August, 2011 he issued in the name of the ANC Youth League a derogatory statement regarding Comrade Malusi Gigaba, a member of the NEC and Cabinet minister.
Comrades Shivambu and Tulelo testified on behalf of the respondent. The respondent did not testify.
FINDING OF THE NDC
After considering all relevant factors, the NDC finds as follows:-
The impact of ANC disciplinary proceedings on membership of the ANC Youth League
Pursuant to Article 11.2 of Schedule A of the Constitution of the ANC Youth League, this ruling is applicable to the respondent`s membership of the ANC Youth League.
Sanction
Factors taken into account for the purpose of sanctioning
Consideration of an appropriate sanction
The Ministry of Public Enterprises is a critical portfolio in South Africa`s quest to attract foreign and local investment for infrastructure development and job creation. The respondent, as a member of the NEC of the ANC should have been familiar with programmes of the ANC and government in this regard and should have realised the consequences of his action and its impact on society.
The unwarranted attack on the person of comrade Gigaba belittled and had the effect of potentially defaming him as a person. At an operational level the attack painted a picture of someone who was ineffective, out to appease the forces of imperialism and as one who did not enjoy the confidence and political support of his comrades in the ANC. In the NDC`s view, this picture would have seriously lowered comrade Gigaba`s esteem, detracted from his mandated duties as Minister of Public Enterprises and impacted negatively on the ANC.
In the current economic climate internationally, the securing of foreign direct investment has become extremely challenging and competitive. The NDC is of the view that the respondent`s action has prejudiced the ANC, the government and the community it serves, including a possible negative effect on investment in South Africa.
The NDC has taken cognisance of the fact that the respondent`s conduct not only attracted liability to himself but also created uncertainty and attracted risk to the country. International and local investors would be reluctant to enter into any long term investment arrangements with a Minister of Public Enterprises who apparently did not enjoy the support of the Youth League of the ANC - who could be seen as possible future leaders.
In any event any attack on a leader of the ANC and NEC member by a Youth League leader who is also a member of the NEC, constitutes an act of ill-discipline and has the effect of creating divisions in the organisation.
For these reasons the NDC considers the offence to be of a serious nature.
The respondent did not testify. Consequently, the NDC has no basis to establish his version and consider any mitigating factors.
The NDC has taken into account the finding of guilt against the respondent on a charge of contravening Rules 25.5(q) and 25.5(o) (which finding was handed down today) and decided not to invoke the suspension in that matter for the purpose of determining an appropriate sanction in this case.
Having weighed and considered these factors, the NDC imposes the following sanction:
The respondent shall be entitled to appeal to the NDCA within 14 days.
THIRD HEARING – THE MATTER INVOLVING CDE SHIVAMBU
In this hearing, the respondent, comrade Floyd Shivambu was charged with three instances of misconduct.
Charge One
The first charge was for contravening Rule 25.5 (o) aa, bb, cc and dd of the ANC Constitution by prejudicing the integrity or repute of the organization, its personnel or its operational capacity by impeding the activities of the organization, creating divisions within its ranks or membership, doing any other act which undermines its effectiveness as an organization:
First act of misconduct
Two acts of misconduct were included in this charge 1. The first act related to the respondent repeately swearing at a journalist on or about 12 July 2011, thereby causing harm to the integrity and reputation of the ANC:
Second act of misconduct 2. The second act of misconduct related to the issuing of a press statement in which, inter alia, the following is stated:
"The ANC Youth League does not believe that our position on Botswana and the approach is inconsistent with ANC policy outlook (sic);" that
"If there is anything inconsistent with ANC policy directives, it is leaders of the ANC who associated with imperialist controlled political parties like MDC in Zimbabwe and BDP in Botswana;" further that
"… the ANC Youth League takes a practical programme of liberating the people of Botswana from imperialist dominance; " further that,
"... the government of Botswana had openly embraced imperialism…"
And finally that
"The resolution of the ANCYL NEC on the Botswana Command team stands until there is discussion with ANC Constitutional structures on what should be the approach to the Botswana question."
Charge Two
The second charged leveled against the respondent was for contravening contravening Rule 25.5(i) of the Constitution of the African National Congress by behaving in such a way as to provoke serious divisions or a breakdown of unity in the organization;
The respondent was charged for misconduct for driving a wedge between the spokesperson of the ANC and the ANC Officials in a press statement issued 2 August 2011. The charge is that he undermined the leadership of the ANC and provoked serious divisions.
FINDING BY NDC ON CHARGE 1
First act of misconduct
The respondent admitted swearing at the journalist and the NDC finds that the respondent uttered the foul language alleged in the Charge.
The respondent`s defence that he was provoked is rejected on the following grounds:-
On the respondent`s argument that the evidence was illegally obtained, the NDC finds:-
The NDC rejected the respondent`s argument that he could not be sanctioned twice for the same offence - the so-called defence of double jeopardy, on the following grounds:-
The respondent`s use of vulgar language constituted behaviour which is a breach of the ANC`s Code of Conduct.
The NDC took the view that the media and any other third party, with whom the respondent as spokesperson for the Youth League communicated with, deserved respect.
Irrespective of how frustrated the respondent felt, did not justify the behaviour that brought the ANC into disrepute.
Based on his admission, the NDC finds that the respondent is guilty of prejudicing the repute of the ANC in contravention of Rule 25.5(o) of the ANC Constitution and that the causal link between the misconduct of the respondent and the act of misconduct contemplated in Rule 25.5 (o) of the ANC Constitution has been established.
Second act of misconduct
The contents of the statement (Annexure E3) issued by the respondent raised the following contentious issues and was a contravention of ANC policy:-
The respondent, by conduct, associated himself with the contents of the statement of the ANC Youth League which was unlawful and unreasonable.
The respondent`s act of issuing the statement, without due regard for the consequences of his action and in circumstances where he was under no obligation to issue the statement rendered him personally liable for misconduct.
The NDC is satisfied that the complainant has proved its case on a balance of probabilities and that the causal link between the misconduct of the respondent and the act of misconduct contemplated in Rule 25.5 (o) of the ANC Constitution has been established.
Consequently, the NDC finds the respondent guilty as charged.
Charge Two
Evidence for the complainant
Both comrades Mbete and Jackson Mthembu testified for the complainant. In view of its finding on this Charge, the NDC believes it is unnecessary to summarise the evidence of these comrades.
Evaluation by the NDC
The extent of overlap between Charges 1 and 2 is evident.
The NDC notes that the complainant has not sought to amend this Charge at any stage of the proceedings and decided to make a finding.
Consequently, the NDC is of the view that since the respondent has already pleaded to this charge, the NDC is obliged to make a finding.
Finding by NDC on Charge Two
The respondent is found not guilty on Charge Two.
Impact of the ANC disciplinary proceedings on membership of ANC Youth League
Sanction
Factors taken into account for the purpose of sanctioning
Consideration of an appropriate sanction
First act of misconduct on Charge 1
Generally, a spokesperson is the face of any organisation. The NDC is of the view that the respondent`s use of vulgar language when dealing with third parties brought the ANC into disrepute, is unacceptable and constitutes a serious offence.
Comrade Mbete testified that she could not remember when the ANC had condoned such language and that it was not the first time that the respondent had committed such an offence.
The respondent`s apology to the Youth League for swearing at the journalist was considered as a mitigating factor.
Second act of misconduct on Charge 1
The respondent is a senior member of the ANC Youth League and performs the crucial function of communicating and articulating decisions of the NEC of the Youth League to members of the ANC Youth League and to the public.
The NDC is of the view that the respondent, who is currently serving a second term as the spokesperson and a leader within the ANC, should have known better.
The NDC is of the view that the interest of the ANC has been severely prejudiced by the misconduct of the respondent. Consequently, the organisation`s standing in inter-party and international relations has been eroded and the element of trust and the ANC`s standing, built over the years, would take time to heal.
As the ANC is the ruling party in government, the NDC has no doubt that the respondent`s act of misconduct would have a negative impact on international inter-state relations and would be prejudicial to society as a whole.
The NDC is of the view that a key responsibility of spokespersons of structures and organs of the ANC is to disseminate and articulate decisions of the movement with clarity, consistent with policies of the ANC.
Certainty is important because investors form their opinion about South Africa from the statements issued by spokespersons. The respondent`s reckless conduct not only attracted liability to himself but also put the country at risk.
The NDC is mindful of the fact that the ANC Youth League is robust in its manner of conducting its affairs and has developed a tendency of pushing the boundaries of policy formulation, as the respondent has testified, and the ANC would not expect its youth wing to act any differently. However, the NDC is of the view that a distinction must be made between robust expression on the one hand and recklessness and ill-discipline in expression on the other. It was incumbent upon the respondent, as a senior leader of the Youth League, to be mindful of this distinction at all times.
The NDC is also of the view that the respondent should have realised that states guard their sovereignty jealously and that the ANC had given an undertaking in the Freedom Charter, more than sixty years ago, to respect this convention.
Any message from the Youth League as a structure within the ANC, could be perceived by the public at large to be a message representing the views of the ANC and, by implication, the government of South Africa.
The NDC has noted the arrogance of the respondent and his response to the ANC that "the Youth League`s position on Botswana will stand until resolved with the ANC" and regards such conduct as an act of defiance and ill-discipline. This arrogance and defiance, the NDC notes, is a far cry from the manner in which different leaders of the Youth League, over the decades, conducted their affairs in attempting to influence ANC policy and to contribute to the political and organisational work of the ANC and the life of the nation.
Once the ANC, through its Headquarters, has pronounced on any matter, no structure or member may publicly contradict such pronouncement.
In the circumstances the NDC considers the two offences for which the respondent has been found guilty to be very serious in nature.
Sanction
Having considered all the above factors, the NDC imposed the following sanction in respect of the two acts of misconduct of which the respondent has been found guilty:
The respondent has the right to appeal to the NDCA within 14 days.
Dated at Johannesburg this 10th day of November 2011
FOURTH HEARING – THE MATTER INVOLVING CDE MALEMA
Three charges were leveled against cde Malema:
Prelude to Findings
As a prelude to the finding on the specific Charges, the NDC finds that there is a difference between the Youth League as an institution and the respondent as an individual. In the same way there is a distinction between the Youth League statement and the respondent`s utterances. The NEC of the Youth League was not charged for its statement. It was the respondent who is being charged for his utterances.
Charge One The first charge is for contravening Rule 25.5(i) of the Constitution of the African National Congress by behaving in such a way as to provoke serious divisions or a breakdown of unity in the organization,
IN THAT: When addressing a press conference at the conclusion of the ANC Youth League NEC meeting on 31 July 2011, he actively participated in making the following statement: "In the past, we know that President Mbeki used to represent that agenda very well" and further that "The African agenda is generally no longer a priority, and we think that there is a temptation by the colonizer and the imperialist to want to re-colonise Africa in a different but sophisticated way – and President Mbeki stood directly opposed to that type of conduct."
Finding on Charge 1
The NDC finds that:-
Charge Two The second charge is for contravening Rule 25.5(c) of the Constitution of the African National Congress by behaving in such a way as to bring the organization into disrepute:
IN THAT 1. On 31 July 2011 he addressed a press conference where, in the name of the National Executive Committee of the ANC Youth League, a structure which operates within the policy confines of the ANC, by making the following pronouncements:
"Botswana`s leadership of government poses a serious threat to Africa, so we need a progressive government in Botswana"; further
"We are not going to sit with neighbours that conduct themselves like that. Botswana is in full co-operation with imperialists… and the government is undermining the African agenda"; and further
"The ANCYL would establish a "Botswana Command Team" which will work towards uniting all opposition forces in Botswana to oppose the puppet regime of Botswana led by the Botswana Democratic Party."
These careless, negligent or reckless pronouncements and utterances were a deviation of established and ongoing ANC policy and had the effect of embarrassing and bringing the organization into disrepute within and beyond the borders of South Africa.
Finding on Charge 2
The NDC finds that:-
Charge Three
The third charge is for contravening Rule 25.5 (d) of the Constitution of the African National Congress by sowing racism or political intolerance:
This charge relates to statements made by the respondent at a public rally on 9 May 2011 in Galeshewe.
There was an alternative charge of contravening Rule 25.5 (c ) of the Constitution of the African National Congress, by behaving in such a way as to bring the organization into disrepute.
Finding on Charge 3
The NDC finds that:-
Sanction
Factors taken into account for the purpose of sanctioning
Consideration of an appropriate sanction
SANCTION
The respondent has the right to appeal to the NDCA within 14 days.
Issued by: African National Congress