Issued by Ezra Mendel and Ismail Joosub and on behalf of the FW de Klerk Foundation on 13/02/2025

Five prominent members of the ANC, namely Zizi Kodwa, Obed Bapela, Cedric Frolick, Malusi Gigaba and David Mahlobo, are currently facing internal disciplinary action within the party over their alleged involvement in the State Capture scandal and other corrupt practices. These actions have prompted a deeper look into the contrasting dynamics between the ANC’s internal party discipline and the criminal justice system. While the ANC’s disciplinary processes focus on violations of party conduct, criminal prosecution holds individuals accountable under national law, imposing far more tangible consequences. This distinction becomes particularly relevant in light of the case of Duduzile Zuma-Sambudla, who faces criminal charges under the Protection of Constitutional Democracy Against Terrorist and Related Activities Act of 2022 (“POCDATARA”).

This article is a follow-up to a piece published by the FW de Klerk Foundation on 15 July 2024, which discussed controversial ANC members embroiled in corruption allegations. Here, we delve deeper into the differences between party discipline and criminal accountability, highlighting how the ANC’s internal measures may not always align with the severity of criminal conduct and how Duduzile Zuma-Sambudla’s legal challenges present a stark contrast.

The ANC’s Disciplinary Process

The ANC’s internal disciplinary procedures are outlined in its Constitution, specifically in Rule 25, which governs the conduct of members. This Rule grants the party’s National Disciplinary Committee the authority to investigate and act on violations of party rules, ethics and the step-aside rule, which requires members facing criminal charges to step down from their positions. Importantly, while these disciplinary measures are political in nature, they do not have the power to bring criminal charges. The ANC’s disciplinary action often involves suspension or expulsion from the party, but these actions do not extend to criminal liability, as they are fundamentally designed to preserve the party’s reputation rather than ensure legal consequences for actions that may fall under criminal law.

While members, such as Gigaba, Kodwa, Bapela, Frolick and Mahlobo, are facing party discipline for their involvement in the state capture saga, they have yet to face criminal prosecution – despite the gravity of their alleged offenses. The step-aside rule and other internal measures, while symbolic, offer no real deterrent for criminal conduct. Instead, they largely serve to remove individuals from positions of power within the party, while avoiding the harsher consequences of criminal law. For example, while these figures are linked to serious allegations of corruption, they have not been prosecuted under South African criminal law and their internal disciplinary measures are often delayed or dismissed with little transparency or finality.

The ANC’s reliance on its internal processes to discipline members raises critical questions about the party’s commitment to holding its members accountable for criminal behaviour. Rather than addressing the legal violations at the heart of these scandals, the ANC’s actions appear more focused on shielding its members from the criminal justice system.

Duduzile Zuma-Sambudla and Criminal Accountability

The case of Duduzile Zuma-Sambudla, in contrast, highlights the difference between political immunity and criminal responsibility. Zuma-Sambudla, daughter of former President Jacob Zuma, faces criminal charges under POCDATARA, following her alleged involvement in actions that contributed to the violence and unrest after her father’s arrest in 2021.

According to section 2 of POCDATARA, any person who engages in a terrorist activity is guilty of the offence of terrorism. Terrorism involves violence or coercion to influence government actions, as outlined in Section 2. Section 3 criminalises supporting or assisting entities engaged in terrorism, including providing weapons, training, or resources. Section 14 specifically criminalises incitement to commit terrorism, including the act of instructing or inducing others to engage in terrorist activities.

Zuma-Sambudla’s alleged actions during the 2021 unrest, particularly her inflammatory tweets, may fall under these provisions. A forensic report analysed 65 tweets she shared between 1 and 13 July 2021, which were linked to the protests following her father’s imprisonment. The tweets, with over 100 000 followers at the time, are argued to have incited violence, with some claiming they contributed to the 356 deaths that occurred during the riots. The penalty for incitement under section 14 depends on the offence incited. If tied to section 2 (terrorist activity), penalties range from life imprisonment in a High Court to 5 years in a Magistrate’s Court.

Zuma-Sambudla’s case raises questions about how POCDATARA is being applied in a politically sensitive context. There is concern that the act could be used selectively against political figures, particularly in situations where powerful individuals are involved. However,  regardless of the political ramifications, the application of POCDATARA to Zuma-Sambudla’s case underscores a critical point: The criminal justice system holds individuals accountable for their actions, regardless of their political or familial ties and it can impose real penalties, including imprisonment.

A Double Standard?

The disparity between the ANC’s internal disciplinary actions and the criminal prosecution of individuals like Zuma-Sambudla presents a troubling inconsistency. While ANC members accused of corruption and state capture may face internal sanctions, they are rarely held criminally accountable. The ANC’s disciplinary processes, as outlined in Rule 25 of its Constitution, focus on ensuring adherence to party principles and maintaining its public image, but they do not extend to criminal charges or legal consequences. These internal processes often provide political protection for those who might otherwise be prosecuted under national law.

On the other hand, Zuma-Sambudla’s case under POCDATARA challenges the concept of political immunity. As her legal troubles unfold, it becomes clear that no one, regardless of their family background or political influence, is beyond the reach of the law. This challenges the ANC’s tendency to shield its members from criminal prosecution, exposing a significant gap between political and legal accountability. Zuma-Sambudla’s prosecution, for all its political ramifications, also signals that the legal system can, at times, act as a counterbalance to the impunity enjoyed by powerful figures within the ANC.

Conclusion

The difference between party discipline and criminal accountability raises concerns about fairness in South Africa’s justice system. While the ANC enforces internal discipline, it often fails to hold its members accountable for criminal actions. In contrast, criminal laws like POCDATARA allow for prosecution regardless of political affiliation. Duduzile Zuma-Sambudla’s case highlights the need for equal accountability under the law, ensuring that no one, regardless of power, is above legal consequences.