Chapter Nine - Legal Commission, Disciplinary committees and disciplinary enquiries

9.1    FEDERAL LEGAL COMMISSION

9.1.1.        The Federal Council must at its first meeting after each Federal Congress appoint the Federal Legal Commission, consisting of the Chairperson and up to fifteen (15) members of whom at least ten (10) must be legally qualified persons as well as up to five (5) alternates of whom at least two (2) must be so qualified and must fill any vacancy as it arises.

9.1.2        A member of the Legal Commission must at all times be a member of the Party.

9.1.3        The Federal Legal Commission must develop rules for the selection of panels to hear matters. A panel must consist of five persons, of whom at least three must be legally qualified persons.

9.1.4        Three (3) members of whom at least two (2) are legally qualified persons constitute a quorum for a panel.

9.1.5        The Federal Legal Commission determines its own rules and procedures, which may not be in conflict with this constitution: Provided that in the case of an investigation referred to in clause

9.2.1.5 the procedure referred to in clause 9.5 must apply.

9.1.6     A person appointed by the Chairperson of the Federal Council acts as secretary to the Commission.

9.1.7    The term of office of the Federal Legal Commission only expires when its successor is appointed: provided that a Federal Legal Commission whose term has expired, remains in office for the purpose of completing an uncompleted matter.

9.2        POWERS AND FUNCTIONS OF THE FEDERAL LEGAL COMMISSION

9.2.1        The Federal Legal Commission has all powers as are necessary to exercise its functions in terms of this constitution justly and expeditiously and must, at the request of the Leader or the Federal Executive or the Federal Council:

9.2.1.1    interpret this Constitution and any Provincial Constitution;

9.2.1.2    certify a Provincial Constitution and any amendments thereto as being in accordance with this constitution;

9.2.1.3    determine any dispute referred to it;

9.2.1.4    decide on the legality or otherwise of any meeting, action, election or resolution by any Party structure;

9.2.1.5    deal with appeals under this Constitution; and

9.2.1.6    conduct an investigation to determine whether a public representative be removed from office on the grounds of incompetence, inefficiency or incapacity.

9.2.1.7    conduct an enquiry in terms of clause 9.6.

9.2.2    When any matter is referred to it by the Federal Executive or the Federal Council, the Federal Legal Commission

9.2.2.1    determines the date for the consideration of the matter and advises the parties thereof;

9.2.2.2    hears evidence, accepts exhibits and calls for papers and documents;

9.2.2.3    hears argument by and on behalf of all parties with a direct interest in the matter; and

9.2.2.4    makes recommendations or gives a decision as it deems fit under the circumstances.

9.2.3   The decisions of the Federal Legal Commission are not subject to appeal and the findings of the Commission must be implemented by the relevant structures of the Party: Provided that a finding that a public representative be removed from office, must be confirmed by the Federal Executive.

9.2.4   The chairperson of the Federal Legal Commission reports in full to the Federal Executive or the Federal Council upon finalization of the proceedings.

9.2.5   The Federal Legal Commission is funded by the Federal Council.

9.3     APPEALS TO FEDERAL LEGAL COMMISSION

9.3.1    Any prospective candidate for national, provincial or local government office has the right of appeal to the Federal Legal Commission in respect of the nomination and selection of candidates on the grounds that the proper procedure was not followed or that the nomination was invalid for any other reason.

9.3.2    Any public representatives who wishes to appeal against the findings of a provincial disciplinary committee, confirmed by a Provincial Executive and which may lead to the termination of membership of that representative, has an appeal to the Federal Legal Commission.

9.4     ESTABLISHMENT OF DISCIPLINARY COMMITTEES

9.4.1    A Provincial Executive must at its first meeting after every Provincial Congress appoint a Disciplinary Committee.

9.4.2    Except where the Federal Council allows otherwise, every Disciplinary Committee must consist of not more than five (5) members and five (5) alternates; more than half the number must have suitable legal qualifications.

9.4.3    Three (3) members of whom at least one must be legally qualified will form a quorum, provided that the Committee must at all times be chaired by one of the legally qualified members.

9.5     PROCEDURE APPLICABLE TO PROCEEDINGS OF A DISCIPLINARY COMMITTEE

9.5.1    The Rules of Procedure prescribed by the Federal Legal Commission must apply to all proceedings of a Disciplinary Committee: Provided that the rules of natural justice must at all times be adhered to. In particular the Committee must not make any adverse finding against any person unless:

9.5.1.1    The person has been fully informed of every allegation against him or her and has been given the opportunity to rebut the allegations; and

9.5.1.2    Has been given the opportunity to submit evidence of mitigating factors.

9.5.2   Persons against whom disciplinary action is taken are entitled to be represented.

9.6     REFERRAL TO DISCIPLINARY COMMITTEE

9.6.1    A Provincial Executive or the Federal Executive may refer a charge of misconduct against any member to a Disciplinary Committee for investigation.

9.6.2    If the Disciplinary Committee fails to act within a reasonable time, the relevant Executive may refer the matter to the Federal Legal Commission which will act as if the matter had been referred to it in terms of clause 9.6.4.

9.6.3    If a Provincial Executive declines to refer a matter or fails to act within a reasonable time in terms of clause 9.6.1, the Federal Executive, may upon the application of any interested member or Party formation, deal with the matter in terms of clause 9.6.1.

9.6.4    The Federal Council or Federal Executive may in the interest of justice, direct that a disciplinary enquiry be conducted by the Federal Legal Commission in which event that commission must follow the procedure prescribed for disciplinary committees.

9.6.5    No provision of the Constitution limits the right of the Federal Executive or a Provincial Executive:

9.6.5.1    to temporarily suspend a member from taking part in any or all of the activities of the Party, pending the outcome of a disciplinary enquiry in terms of this chapter; or

9.6.5.2    to appoint a commission to enquire into the matter in order to establish the facts relevant to the matter to be referred.

9.7    FINDINGS BY DISCIPLINARY COMMITTEES

9.7.1   A Committee may find and recommend that:

9.7.1.1   the membership of the person being investigated, be terminated;

9.7.1.2   the membership of the person being investigated be suspended for a specified period;

9.7.1.3    the person being investigated be suspended from any position in the Party or from holding any position in future or for a specified period or that all or any of the privileges of a member as stated in this constitution be suspended; or that

9.7.1.4    the person being investigated be admonished.

9.7.1.5    the person found guilty of misconduct may be fined an amount not exceeding the amount determined by the Federal Council from time to time payable upon such terms and conditions as the committee may recommend.

9.7.2    The Committee must report its findings as a recommendation to the relevant Executive.

9.8    DECISIONS BY THE EXECUTIVE

9.8.1   The Provincial or Federal Executive, as the case may be, must consider the findings and recommendation of the Disciplinary Committee and may:

9.8.1.1    accept and confirm the finding of the Committee; or

9.8.1.2    impose a lesser penalty than that recommended by the Committee.

9.8.2   Subject to the appeal mechanism referred to in clause 9.3.2, the decision of the relevant Executive is final.

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