An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Julius Malema has been found guilty on several charges and suspended from the ANC for a period of five years. He has a right to lodge an appeal within 14 days to the National Disciplinary Committee of Appeal (NDCA). A suspension will only take effect if that process has been finalised. Mr Malema and his allies and backers will now have to work fast before he loses the power and influence that accompanies his position as ANC Youth League President.
The party’s appeal committee is headed by businessman and ANC heavyweight Cyril Ramaphosa, while its other members are Minister in the Presidency Trevor Manuel, Justice Minister Jeff Radebe, his predecessor Brigitte Mabandla and ANC national executive committee member Jessie Duarte.
Given the composition of the NDCA and given the politics surrounding the bringing of these charges, it seems unlikely that the NDCA will change the decision of the Disciplinary Committee. There cannot be too many people in South Africa who would think that this finding has nothing to do with the campaign of the Youth League to unseat President Jacob Zuma as ANC President. Getting rid of Malema will almost certainly deal a fatal blow to the possible campaign by any other leader to successfully challenge Jacob Zuma for the presidency.
The ANC Constitution states that decisions of the NDCA shall be final, “except that the NEC may, in its discretion, review a decision. Such a review shall be regulated by standing orders adopted by the NEC”. This means if the NDCA confirms the verdict and the sentence a “political solution” is the only way forward for Mr Malema.
Mr Malema has two ways of fighting this suspension in the political arena. He can approach the National Executive Committee (NEC) and those forces in the NEC who would like to get rid of Zuma can try and have the suspension overturned there. If they manage to have the charges overturned, it will damage President Jacob Zuma politically by indicating that he does not have majority support inside the NEC, emboldening President Zuma’s opponents.
Those ANC leaders eyeing President Zuma’s job or the job of Gwede Mantashe will therefore have to move fast to rustle up support inside the NEC for Mr Malema (and by implication for themselves).
Alternatively, Malema can work behind the scenes to try and rustle up support from branch members (something that would be difficult if his suspension is confirmed) to have his suspension overturned at the elective conference next year.
President Zuma, the ultimate survivor, strikes again.
PS: On SAFM Steven Friedman has argued that the suspension will not kick in before the elective conference next year because section 25(9)(a) (a) which states that: “A decision of a disciplinary committee only takes effect once the internal appeal procedures and remedies provided for in terms of Rule 25 have been exhausted”. This would include having the suspension overturned at the elective conference. This reading is wrong as it ignores the next section which states that: “Any person found guilty during a disciplinary proceeding, or the complainant, has the right, within 14 days from the date of sentencing, to appeal against the conviction or sentence, to the disciplinary committee of the next highest body of the ANC. A member is only entitled to one appeal to such next highest disciplinary body, whose decision shall be final and binding”. This means that if the NDCA confirms the suspension, Malema will indeed be suspended. It does not preclude Malema from seeking a political solution at NEC or at elective conference but he won’t be a member of the ANC.BACK TO TOP