NB: Views expressed here may be subjective and have no legal merit in the ANC or elsewhere. They are a matter of opinion that should not be taken seriously.
The fact that the NDCA has accepted the appeal for mitigation and aggravation and referred the matter to the NDC means the sentences on the guilt verdicts that the NDCA upheld cannot take effect until that process is concluded.
Even after the NDC issues sentences after the mitigation/aggravation process, the applicants will reserve the right to appeal the sentences, not the verdicts, in the NDCA. Therefore for the 5 members that were charged, excluding President Malema, it is not over yet. They remain members until the NDC gives sentences on mitigation/aggravation and perhaps until the NDCA rules on the likely appeal of those sentences, that is if the members choose to appeal.
However, on 11 May 2010 part of the ruling of Malema’s then disciplinary hearing reads thus,
“The NDC further ruled that should Comrade Julius Malema be found guilty of contravening rule 25.5 (i) of the ANC Constitution within the next two years, his membership of the ANC shall be summarily suspended, for a period to be determined by the NDC.”
Arising from that part of the previous ruling, the ruling of the NDC on 10 November 2011, after the recent charges said,
“With regard to the respondent`s disciplinary hearing in May 2010, the respondent`s membership is suspended for a period of 2 (two) years;”
The NDCA upheld the guilt verdict that prompts the May 2010 decision. Therefore President Malema is effectively suspended from the ANC and ANCYL for two years starting on 10 November 2011. He is no longer the President of the ANCYL. This 2 year suspension ends on 09 November 2013. His term of office expires in June 2014. In theory, if all the other sentences are withdrawn or suspended by the NDC or NDCA after the mitigation/aggravation process, he will return to continue to be the ANCYL President on 10 November 2013 for the remainder of his term.
Even if all the other sentences on the recent charges can be mitigated and suspended or withdrawn, this sentence stands unless it is reversed by the ANC NEC or the ANC 53rd National Conference, that is if Malema chooses to take the appeal further. However, the appeals to the ANC NEC and the National Conference are pursued while serving the sentence, unlike that of the NDCA.
Technically, the Deputy President of the ANCYL, Cde Ronald Lamola, assumes the position of Acting President of the ANCYL today until the mitigation/aggravation process that may impact on the fate of his membership is concluded by the NDC and possible the NDCA.
I should hasten to point out that this is not the official position of the ANCYL. The official statement of the ANCYL issued on 03 February 2012, before the NDCA decision was announced, said,
“The ANC Youth League will not hold any press briefing after the NDCA verdict, but will instead wait for the guidance of structures of the ANC Youth League” (http://www.facebook.com/note.php?note_id=10150510839692447)
UPDATE (Mon, 06 Feb 2012): Since the period of suspension for the May 2010 NDC was only determined in November 2011, there is a gray area on whether it is subject to the mitigation/aggravation process or not. In the interest of fairness, it seems the ANC has opted that it is subject to the mitigation/aggravation process. Therefore, Cde Malema remains the President of the ANCYL until the mitigation/aggravation process is complete. Cde Mantashe said it is a political consideration rather than a legalistic approach.