Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
21 April 2010

The ANC, Julius Malema and the NDC

It’s all rather confusing. Maybe the ANC – more pertinently Secretary General Gwede Mantashe – has charged Julius Malema with various counts of misconduct. Then again, maybe Malema has only been informed that the ANC will press charges against him at some future date. Or perhaps he has been charged but President Jacob Zuma has now been pressurised to have the charges against him dropped. Who knows what’s going on? I suspect not many in the ANC know what is going on either, so the rest of us will also remain in the dark.

All this talk of discipline made me wonder just how the ANC deals with this sort of thing. Like any political party, it is required to deal with the disciplining of members in terms of its Constitution. Section 25 of the ANC Constitution (and an appendix to that Constitution) sets out in detail exactly how this should be done. A study of the relevant sections of the ANC Constitution, reveals a few interesting facts.

First, disciplinary action can be initiated against Malema by any of the national officers of the ANC (that would include President Jacob Zuma, Gwede Mantashe or any of the other “top six” ANC leaders), or by the National Working Committee (NWC) or by the National Executive Committee (NEC) if any of these individuals or bodies “refer any violation or misconduct directly to the National Disciplinary Committee (NDC)”. Once a authorised individual or body has referred the matter to the NDC, the NDC has to conduct a disciplinary hearing after the person or organ who had referred the matter to it had finalised the drafting of a charge sheet.

The ANC Constitution is not very clear on this, but it seems that once a matter has been referred to the NDC, neither Zuma or anyone else can stop the process. It would be in the hands of the NDC who will have to make a finding and hand down penalties (if appropriate) – although the NEC may review any decision of the NDC.

If I am correct, this means that if news reports are to be believed that the matter has already been referred to the NDC, Malema will have no choice but to appear before the NDC. News reports that the ANC Youth league made representations to President Zuma and other members of the “top six” leadership to have the charges dropped, then also makes no sense. Such representations should be made to the NDC.

Second, section 25.5 of the ANC Constitution contains a long list of activities that may be invoked by the NDC to discipline any ANC member (including Julius Malema, of course). These include:

  • Behaviour which brings the organisation into disrepute or which manifests a flagrant violation of the moral integrity expected of members and public representatives or conduct unbecoming that of a member or public representative;
  • Sowing racism, sexism, tribal chauvinism, religious and political intolerance, regionalism or any form of discrimination;
  • Abuse of elected or employed office in the organisation or in the State to obtain any direct or indirect undue advantage or enrichment;
  • Behaving in such a way as to provoke serious divisions or a break-down of unity in the organisation;
  • Undermining the respect for or impeding the functioning of the structures of the organisation;
  • Prejudicing the integrity or repute of the organisation, its personnel or its operational capacity by: Impeding the activities of the organisation; Creating division within its ranks or membership; Doing any other act, which undermines its effectiveness as an organisation; or Acting on behalf of or in collaboration with: Counter-revolutionary forces; or
  • Fighting or behaving in a grossly disorderly or unruly way.

Malema could be found guilty of any number of these provisions. Let’s face it, if the NDC wants to teach Julius Malema a lesson or even wants to expel him from the party, they will not have much difficulty in finding reasons to do so. However, many of these provisions are rather vague, so it leaves much leeway for the NDC to decide on whether to find Malema guilty or not.

If they have the political will, the NDC will therefore find Julius guilty and meet out strict punishment. If, however, the NDC does not have the political will to deal with Julius (say because they are scared of him or because they get the impression that President Jacob Zuma, the NWC or the NEC would not back up any finding they might make), they can easily wriggle out of responsibility and can exonerate Malema.

Although the ANC Constitution thus lists many grounds on which any disciplinary action against a member may be based, and although this gives the disciplinary process somewhat of a legal character, it would be naive not to see that political considerations may well play a role in decisions by the NDC on whether a member has breached any of the above rules and if so, what punishment should be meted out. (Other rules, such as the rule – not mentioned above – that a member who has been convicted for a serious non political criminal offence may face disciplinary charges, are more “objective”, of course.)

To use one example: on what basis does one decide whether Julius has sown “racism, sexism, tribal chauvinism, religious and political intolerance, regionalism or any form of discrimination”? Your average housewife in Sandton (and, it has to be said, quite a few ANC officials irritated with Malema) may think it is obvious that Julius should be found guilty on this charge, but many others might argue that Julius was merely singing old struggle songs and that he was speaking the truth when he praised Robert Mugabe and said nasty things about Eugene Terreblanche.

Third, the NWC and the NDC may summarily suspend the ANC membership of any member facing disciplinary charges and such suspension shall remain in force until the disciplinary proceedings have been finalised. This means that if either the NDC or the NWC really believed that what Julius had done was as serious as President Zuma intimated last week, they have every right to suspend him temporarily from the ANC. The fact that this has not happened says more, perhaps, than anything else about how careful these bodies are and how worried they are to upset Malema and his backers (Tokyo Sexwale, perhaps?).

Lastly, if the NDC finds Julius guilty of breaching any of the provisions set out above (assuming that he ever faces the charges before the NDC) the Committee can reprimand him, suspend him for a period of expel him from the organisation. A reprimand would obviously be seen as a slap on the wrists and as a slap in the face of President Zuma who last week claimed that the actions of Malema was alien to the culture of the ANC. If the NDC actually finds Malema guilty of anything and then merely reprimands him, it would say much about the lack of control that Zuma has over the organisation that he leads.

In conclusion, it seems to me the manner in which the ANC handles the disciplinary charges against Malema will help us better to understand who stands where in the Byzantine power struggles inside the ANC. Just because the process appears to be quasi-judicial does not mean that it will not have a strong political component (and political ramifications). Is it too melodramatic to claim that the future trajectory of Jacob Zuma’s presidency will be revealed as the disciplinary process against Julius Malema unfolds?

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