ANC National Disciplinary Committee, 29 February 2012, Luthuli House, Johannesburg

1. The National Disciplinary Committee (NDC) was instructed by the National Disciplinary Committee of Appeal (NDCA) on 4 February 2012 to hear evidence in mitigation and aggravation of sanction in the cases involving comrades Sindiso Magaqa, Floyd Shivambu and Julius Malema.

2. The NDC has considered the evidence of witnesses and that of the charged members in mitigation of sanction, as well as evidence in aggravation of sanction.

3. The NDC has discharged its duty without fear or favour and has not been swayed by any outside party. All its decisions have been made on the evidence before it and a complete Record of the proceedings is available to support its conclusion.

4. At its public announcement of the outcome of the disciplinary hearing, the NDC referred extensively to the ANC Constitution; the aims, objectives and character of the ANC; the injunctions of the September 2010 National General Council and the prevailing circumstances during the hearing. In addition, the NDC specifically drew the attention of ANC members to the solemn commitment made by members at the time of joining the ANC.

5. In the light of public statements made by the ANC Youth League and the Respondents following the main NDC hearing and the NDCA hearing, the NDC advises members to faithfully observe their solemn commitment and to fully familiarise themselves with the ANC Constitution.

6. The ANC has the right at all times to explain and clarify its disciplinary proceedings and approaches to discipline. However, in all disciplinary proceedings, representatives, members, structures and employees of the ANC should respect the sub judice principle and not comment on the specifics of the cases. This would avoid any semblance of the perception that their utterances could be construed to influence the outcome.

FINDING

A. Background

1. On 10 November 2011 the National Disciplinary Committee (NDC) found the Respondents guilty of committing various acts of misconduct in terms of Rule 25.5 of the ANC Constitution and imposed a sanction in each case.

2. The Respondent, Sindiso Magaqa, was found guilty of contravening Rule 25.5(o) of the ANC Constitution for issuing, in his capacity as SG of the ANC Youth League, a derogatory and potentially defamatory statement about comrade Malusi Gigaba, a member of the National Executive Committee (NEC) of the ANC and the Minister of Public Enterprises.

3. The Respondent, Floyd Shivambu, was found guilty 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.

4. The Respondent, Julius Malema, was found guilty of contravening Rules 25.5(c) and (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 government and its leadership under President Zuma in a negative 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.

5. The Respondents appealed to the National Disciplinary Committee of Appeal (NDCA) against the findings and raised legal and factual arguments regarding the sanction imposed by the NDC.

6. On 4 February 2012 the NDCA dismissed the appeals against the findings involving the three respondents listed above, but provided the following directive in respect of sanction:

6.1 As prayed for by the Appellants, the matter is referred back to the NDC to determine an appropriate sanction after hearing evidence in mitigation and aggravation of sanction that the parties may wish to present.

6.2 Such hearing shall be concluded by the NDC within 14 (fourteen) days from date hereof and the NDC is directed to provide appropriate guidelines to the parties for the expeditious finalisation of the process.

6.3 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 of membership or expulsion from the ANC shall be applicable to the Appellant`s membership of the ANC Youth League.

EVALUATION BY THE NDC

7. In determining appropriate sanctions, the NDC took into consideration evidence led during the hearing, the evaluation of evidence in mitigation and aggravation of sanctions and the approach in the ANC Constitution towards sanctions.

Respondents` arguments

8. A substantial part of the evidence given by the Respondents in mitigation of sanction was directed at reducing their blameworthiness. They sought to offer justification for the commission of the offences and to make out a case that the charges were political in nature, which required a political solution and not disciplinary action.

Comrade Sindiso Magaqa

9. In the case of comrade Magaqa, it was argued that the statement was issued because the ANC Youth League was provoked by comrade Gigaba`s characterisation of the debate on nationalisation of mines as reckless.

10. This argument was dismissed by the NDC in its Finding and confirmed by the NDCA. Consequently, the NDC does not consider it necessary to restate its Finding. Furthermore, the NDC is of the view that there is nothing political about making derogatory and potentially defamatory statements about a member of the NEC.

Comrade Floyd Shivambu

11. In the case of comrade Shivambu, the NDC has already dismissed the argument that the comrade was provoked by the journalist and this Finding was confirmed by the NDCA.

12. The NDC does not accept that there is anything political about swearing at a journalist.

13. With regard to comrade Shivambu`s conviction on the second count for issuing a statement on Botswana in contravention of ANC policy, the NDC reject the accusation that there is a political motive in the charge. The ANC has a policy on Party-to-Party relations and the Respondent contravened that policy, as already stated in the NDC finding on 10 November 2011 and subsequently confirmed by the NDCA.

Comrade Julius Malema

14. With regard to the charges against comrade Malema, the NDC does not accept that there is a political motive in the charges.

15. The NDC Finding which was confirmed by the NDCA, was that comrade Malema had publicly expressed his personal views in contravention of ANC policy, thereby sowing divisions within the organisation and bringing the organisation into disrepute.

16. Full reasons for the finding against comrade Malema were set out in the Finding and the NDC does not consider it necessary to restate these reasons.

All three Respondents

17. The arguments by all three Respondents that they were convicted for acting in a representative capacity and for utterances and statements made by a collective or for repeating the statement of the ANC Youth League were also dealt with at length in the NDC Findings and were rejected. The NDCA subsequently confirmed the Findings of the NDC.

18. The argument advanced by the Respondents that they submitted resolutions of their Congress to the ANC leadership timeously, was not accepted by the NDC because according to the evidence led the resolutions were submitted after the commission of the offenses in question.

19. Having considered the arguments raised by the Respondents, the NDC finds that there was no justification for their actions and utterances. Consequently, their blameworthiness is not reduced.

20. The evidence of comrades Andile Lungisa and Abner Mosaase was premised on the understanding that comrade Malema was found guilty for acting as a representative of the ANC Youth League and for repeating an ANC Youth League statement.

21. After listening to their evidence, the NDC is convinced that these two comrades did not read the Findings of the NDC and the NDCA because if they had, they would have understood the basis upon which comrade Malema was found guilty. For this reason the NDC finds that their evidence is not helpful to the Respondents, particularly comrade Malema.

22. The NDC also does not accept comrades Mosaase`s evidence that in the ANC Youth League matters of ill discipline are dealt with politically. The ANC Youth League Constitution sets out an elaborate formal procedure for dealing with misconduct.

23. The above arguments advanced by all three Respondents do not offer any mitigation, but instead offer a defense against findings which were made by the NDC and confirmed by the NDCA.

The relationship between the ANC and its members

24. The ANC owes a duty not only to its members, including the Respondents, but to all South Africans to ensure that discipline is maintained in pursuit of the fundamental goal to construct a united, non-racial, non-sexist, democratic and prosperous South Africa.

25. For this reason the NDC has taken into account the evidence given by the Complainant`s witnesses in the main disciplinary hearings about the negative impact that the Respondents` misconduct has had on South Africa and its people for the purpose of determining an appropriate sanction.

26. As a voluntary organisation, the ANC has the power to regulate its internal affairs in terms of the ANC Constitution, including the right to refuse membership, and to suspend or expel any of its members.

27. Rule 25 of the ANC Constitution requires all members, without exception, to abide by the Constitution of the NEC and sets out acts, which constitute misconduct. Without the power to discipline members in the event of misconduct the ANC runs the risk that members could distort the character, purpose, and historic mission of the ANC.

28. All Disciplinary Committees, including the NDC and NDCA, are structures created in terms of the ANC Constitution for the purpose of maintaining discipline within the ANC. Their decisions must be respected by all members, structures and organs of the ANC.

29. The ANC Constitution promotes the principles of freedom of speech and free circulation of ideas and information within its ranks, provided that a member does not contravene the disciplinary code as set out in Rule 25.5 of the ANC Constitution and with regard to Rule 25.2(a).

30. Rule 25.5 set out twenty-eight (28) acts of misconduct in respect of which disciplinary proceedings may be invoked and instituted against ANC members. Acts of misconduct which seek to sow division or a breakdown of unity in the ANC and which bring the organisation into disrepute are specifically intended in the ANC Constitution to protect the core values, character, unity and historic mission of the ANC.

31. The relationship between the ANC and the three Respondents is contractual in nature. When the Respondents joined the ANC they took the membership oath; they were fully aware of the provisions of the ANC Constitution; they considered themselves bound by the ANC Constitution and they undertook to respect the ANC Constitution and its structures.

32. The potential for sanction arising from breach of discipline, including suspension or expulsion from the ANC, is part of the consideration that a person accepts in return for admission to the ANC as a member. A member is fully aware of this possibility at the outset when he or she joins the ANC.

33. As set out in the ANC Constitution the ANC is a voluntary organization, which people join willingly because they subscribe to its aims, objectives, culture, ideals and value system. This is the glue that has held the ANC together for a hundred years. No one is forced to join the ANC or compelled to remain in the ANC. In the same spirit, the ANC should not be obliged to associate with any member or to retain the active participation of any member, without exception, who pays scant regard to the membership oath of the ANC, its character and unity, aims and objectives and the policies of the organisation.

Factors taken into consideration in deciding an appropriate sanction

34. In deciding an appropriate sanction, the NDC took into consideration the following factors:-

34.1 The seriousness of the offence;

34.2 The presence of aggravating factors;

34.3 Any previous findings against the respondents;

34.4 The presence of mitigating factors;

34.5 The concept of a graduated approach to sanctioning;

34.6 The concept that the sanction must take into consideration the interests of the ANC, the respondents and society at large; and

34.7 The sanction must fit the offence.

The seriousness of the offence

35. Comrade Sindiso Magaqa was found guilty of contravening Rule 25.5 (o) of the ANC Constitution.

36. Comrade Floyd Shivambu was found guilty on two counts of contravening Rule 25.5 (o) of the ANC Constitution.

37. Comrade Julius Malema was found guilty of contravening Rules 25.5 (c) and (i) of the ANC Constitution.

38. The NDC is of the view that all three Respondents were found guilty of committing serious offences which warrant either suspension or expulsion from the organisation.

The presence of mitigating factors

39. The Respondent, comrade Sindiso Magaqa, is a first offender and is a newly appointed member of the NEC of the ANC Youth League.

40. Comrade Floyd Shivambu sincerely apologised for swearing at the journalist. He also apologised at his hearing last year.

41. Although evidence was led at his hearing of the commission of a similar offence where the ANC had to pay money to a third party for his misconduct, comrade Floyd Shivambu is treated as a first offender for purposes of sanctioning.

42. The evidence of long-standing political involvement and good character given by comrade Soviet Lekganyane in comrade Malema`s favour has been noted as a mitigating factor.

The presence of aggravating factors

43. Save for an apology from comrade Shivambu with respect to one of the charges, all three Respondents did not show any remorse or acceptance of wrong-doing.

44. The Respondents missed the opportunity to present argument in mitigation of sanction and instead challenged the findings of both the NDC and the NDCA. They largely confined their argument to insisting that the NDC and NDCA had erred in its findings.

Details of any previous findings against the respondents

45. The Respondent, comrade Julius Malema, is a repeat offender. In May 2010 he was found guilty of contravening Rule 25.5 (i) of the ANC Constitution.

The concept of a graduated approach to sanctioning

46. As stated above, the NDC is of the view that the offences committed by all three Respondents are sufficiently serious to warrant either a period of suspension or expulsion.

47. The NDC is of the view that a fine, reprimand or other corrective sanction would, in the circumstances, not fit the offence, would be inappropriate and would send the wrong message to ANC members and the wider community.

The concept that the sanction must take into consideration the interests of the ANC, the Respondents and society at large

48. The Respondents enjoy membership of the ANC, which is a liberation movement and also the ruling party and are in the privileged position of being members of the National Executive Committee of the ANC Youth League.

49. It is the responsibility of the ANC Youth League to inculcate the values of discipline and loyalty amongst its members.

Consideration of the case of Comrade Sindiso Magaqa

50. Comrade Magaqa did not testify at his disciplinary hearing. The NDC, in its discretion, gave him the benefit of doubt that he would have expressed remorse if he had testified. The NDC also adopted a remedial approach to his sanction by directing him to apologise to comrade Gigaba.

51. In his mitigation hearing, comrade Magaqa:-

51.1 Did not show any remorse;

51.2 Testified that the view of the ANC Youth League was to deal with ill-discipline politically;

51.3 The ANC Youth League would only apologise to comrade Gigaba if he was prepared to meet with the ANC Youth League to explain his views on nationalisation.

51.4 Testified that he agreed with the Youth League statement.

52. The NDC finds that comrade Magaqa has shown no remorse and his evidence has aggravated his case. The NDC also finds it extraordinary that the Secretary General of the ANC Youth League could even consider saying that issues of ill-discipline in the ANC Youth League are dealt with politically when the ANC Youth League`s own Constitution provide an elaborate and formal procedure for dealing with acts of misconduct.

53. Comrade Magaga should have realized that pronouncements by him as Secretary General of an organ of the ANC would carry a lot of weight and would readily be accepted by Youth League members as authoritative.

54. Comrade Magaqa`s unwarranted personal attack against comrade Gigaba was prejudicial to the integrity and repute of the ANC and constituted a serious offence.

55. The fact that he is a first offender and newly elected member of the NEC of the ANC Youth League count in his favour.

Consideration of the case of Comrade Floyd Shivambu

56. The Complainant did not lead any evidence in aggravation of sanction against comrade Floyd Shivambu.

57. Comrade Shivambu has shown no remorse for the Botswana statement which transgressed ANC policy and which differed significantly from the ANC Youth League`s 24th Congress resolution on Botswana.

58. Comrade Shivambu`s misconduct brought the ANC into disrepute and undermined the ANC`s commitment to respect the sovereignty of states. In the view of the NDC, both offences committed by comrade Shivambu are serious.

59. Comrade Shivambu has shown remorse for swearing at the journalist.

60. For the purpose of sanctioning, he is regarded as a first offender.

Consideration of the case of Comrade Julius Malema

May 2010 findings

61. The NDC noted that in respect of the May 2010 sanctions, the corrective elements of the sanctions were not implemented.

62. The NDC`s package of sanctions imposed in 2010 is severable. The first part relates to remedial action and was designed to correct comrade Malema`s behaviour and make him a responsible leader. The second part serves as a deterrent that he should refrain from conduct that would bring the ANC into disrepute and sow division in the organisation.

63. The NDC finds nothing inconsistent about these sanctions because they were intended to achieve two different purposes.

64. With regard to the second part of the sanctions, comrade Malema was fully aware that should he be found guilty for contravening Rule 25.5 (i) of the ANC Constitution within two years, he ran the risk of having his ANC membership suspended for a period to be determined by the NDC. Consequently, the NDC finds that there was an obligation on comrade Malema to observe, at least for two years, the terms of his suspended sanction and that his failure to do so obliges the NDC to impose the sanction of suspension of his ANC membership.

65. Although comrade Malema committed an extremely serious offence, he pleaded guilty, showed remorse and expressed a willingness to submit to corrective action.

Present disciplinary hearing

66. The Complainant led aggravating evidence against comrade Malema with regard to the current convictions.

67. Whilst comrade Malema testified that he subjected himself to the discipline of the ANC and that he would comply with any sanction imposed by the NDC, the NDC is particularly disturbed by the following evidence given by comrade Malema at the mitigation hearing:-

67.1 In his evidence-in-chief, comrade Malema said that he did not agree with the Findings of the NDCA and repeated it under cross- examination.

67.2 He said that he was not persuaded by the NDCA findings and will continue to challenge the outcome internally because he was unfairly found guilty.

67.3 He said that the disciplinary proceedings will come to an end but the real battle will start after that when the ANC has to persuade the youth.

68. In the NDC`s view, this evidence is indicative of comrade Malema`s unrepentant attitude and non-acceptance of the findings of the disciplinary machinery of the ANC, particularly the NDCA.

69. The NDC accepts that as a tribunal of first instance in this case, comrade Malema has a right not to agree with the Findings of the NDC because the ANC Constitution gives him and the other comrades the right to appeal to the NDCA.

70. However, Comrade Malema`s refusal to accept the Findings of the NDCA, which confirm the findings of the NDC, is clearly untenable.

71. Comrade Malema should have known or have been advised that Rule 25.6 (a2) of the ANC Constitution declares decisions of the NDCA as final, except that the NEC may, in its discretion, review such a decision.

72. When comrade Malema joined the ANC he undertook in his membership oath to respect the ANC Constitution and its structures.

73. As stated above, both the NDC and the NDCA are structures that are created in terms of the ANC Constitution.

74. The NDC is of the view that if comrade Malema is not prepared to accept final decisions of the NDCA, then the likelihood of him respecting the ANC Constitution is remote.

75. This conclusion is reinforced by his utterance that after the conclusion of the disciplinary proceedings, which are conducted in terms of the ANC Constitution, the real battle will start when the ANC will still have to persuade the youth. As the President of an organ of the ANC responsible for mobilizing the youth behind the ANC, this statement, in the view of the NDC, constitutes a threat and is tantamount to holding the ANC to ransom.

76. Moreover, in his application in August 2011 to quash the charges, one of the arguments raised by comrade Malema was that the ANC Constitution was unconstitutional. In its ruling, the NDCA confirmed that he did raise this argument.

77. Comrade Malema is a repeat offender. He has now been found guilty of two serious offences in under two years whilst under suspension after his 2010 Finding; has shown no remorse; is not prepared to be disciplined by the ANC and is not prepared to respect the disciplinary machinery of the organisation.

78. Based on comrade Malema`s own evidence the NDC finds that comrade Malema is, in effect, reneging on his membership oath and is not prepared to respect the ANC Constitution.

79. With regard to comrade Malema`s plea not to have his membership taken away, the NDC believes that any period of suspension imposed as a sanction would not, as the Complainant`s representative submitted, achieve the purpose of rehabilitating the comrade.

80. In the view of the NDC, comrade Malema`s misconduct of bringing the ANC into disrepute and sowing division within its ranks is very serious.

81. The ANC Constitution demands that discipline be enforced without exception. The cumulative effect of comrade Malema`s past and present offences, coupled with his own evidence of lack of remorse and disrespect for the ANC Constitution and its structures, particularly the NDCA, has left no room for the NDC to consider his misconduct as anything but extremely serious.

82. In exercising its duty to balance the interest of the Respondent on the one hand and that of the ANC and its membership as an organization on the other hand, the balance weighs in favour of the ANC to impose the sanctions as stated below.

Sanctions

83. The ANC Constitution under Rule 25.8 (a) provides for penalties or sanctions, which may be imposed by a disciplinary committee, for proven violations of the Constitution, other relevant instruments, principles, norms, policies and decisions of the ANC. Such sanctions will include reprimand, payment of compensation and/or the performance of useful tasks, remedial action and suspension of membership or expulsion from the ANC.

84. Rule 25.8 (b) provides that a disciplinary committee may suspend the imposition of any of the above penalties or sanctions, with or without conditions, for a period to be determined by such disciplinary committee.

85. The NDC evaluated and gave due weight to all the evidence and submissions, within the context of the above framework of assessment and imposed appropriate sanctions in line with the offences committed.

Sanction in the case of Comrade Floyd Shivambu

86. Having weighed and considered all factors, the NDC imposes the following sanction in respect of the two acts of misconduct of which cde Shivambu has been found guilty:

86.1 Cde Shivambu`s membership is suspended for a period of three (3) years.

86.2 In accordance with the NDCA finding of 4 February 2012, this sanction is applicable to cde Shivambu`s membership of the ANC Youth League. Consequently, he shall vacate his position as a member of the National Executive Committee of the ANC Youth League.

87. Cde Shivambu has the right to appeal to the NDCA against this sanction within 14 days.

Sanction in the case of Comrade Julius Malema

88. Having weighed and considered all factors, the NDC imposes the following sanction in respect to the May 2010 findings and the two acts of misconduct of which cde Malema has now been found guilty:

88.1 With regard to Cde Malema`s disciplinary hearing held in May 2010, his membership is suspended for a period of two (2) years.

89. In respect of the present disciplinary hearing:

89.1 Cde Julius Malema is expelled from the ANC.

90. In respect of both findings:

90.1 In accordance with the NDCA finding of 4 February 2012, this sanction is applicable to cde Malema`s membership of the ANC Youth League. Consequently, he shall vacate his position as President of the ANC Youth League.

91. Cde Malema has the right to appeal to the NDCA against this sanction within 14 days.

Sanction in the case of Comrade Sindiso Magaqa

92. Having weighed and considered all factors, the NDC imposes the following sanction in respect of the act of misconduct of which the respondent has been found guilty:

92.1 Comrade Sindiso Magaqa`s membership is suspended for a period of three (3) years.

92.2 This sanction shall be suspended for a period of three (3) years and will be implemented if cde Magaqa is found guilty of any act of misconduct in terms of the ANC Constitution during the period of suspension.

92.3 In accordance with the NDCA finding of 4 February 2012, this sanction is applicable to cde Magaqa`s membership of the ANC Youth League.

92.4 Subject to his right of appeal, cde Magaqa shall make a public apology to comrade Malusi Gigaba within fifteen (15) days. Failure to do so will result in Clause 92.1 coming into operation with immediate effect.

93. Cde Magaqa has the right to appeal to the NDCA against this sanction within 14 days.

Dated at LUTHULI HOUSE, JOHANNESBURG this 29th day of February 2012

______________________

Chairperson: Derek Hanekom

On behalf of ANC National Disciplinary Committee