Mr James Selfe
Chairman, Federal Executive
I refer to your letter to me dated 3 June 2017, and respond as follows:
Re: PROCEDURAL ISSUES
- In our leader’s statement on the same date, he announced that the Fedex had taken a decision to suspend me. This contradicted the contents of your letter to me, which gave me until 6 June to respond to the notice of Fedex’s intention to suspend me. When I pointed this out, the announcement by our leader was amended to say I would be given 72 hours to respond, and that I had NOT in fact been suspended. It is clear, however, that he has pre-judged and taken a decision to suspend me.
- On 4 June the Sunday Times reported that the entire Fedex had already voted on this issue and hence pre-judged it. Upon checking this matter with individual members of Fedex it was confirmed that the vote was on whether I should be suspended, not whether I should be given 72 hours to give reasons why I should not be suspended. In addition, I am advised that there was no proper time given to properly discuss this matter, and that the usual procedures were not followed. It would seem that the discussion was rushed to fit in with the timing of the press conference, and that a pre-prepared press statement was ready, indicating that the discussion at the meeting was a mere formality before making the announcement at the press conference.
- This initial material failure to comply with due process has serious implications. The leader has, in a public statement, made it clear that he wants me suspended and has already decided to suspend me. This puts the Fedex in an impossible position to make an objective determination, whatever the merits of my arguments against suspension. In any event, Fedex has equally compromised itself on this decision.
- Even if the Fedex were to support my arguments (set out below), on their merits, they will be aware that this will be seen as a public repudiation of the leadership’s wishes, which they will probably seek to avoid. The failure to observe due constitutional process in terms of section 3.6.3 of the DA constitution, has rendered the exercise of my right to representation hollow, as there is little chance of the DA Fedex publicly embarrassing the leader through being influenced by the legality of my submission, no matter how cogent it is.
- You, in your capacity as chairperson of the Federal Executive, have stated publicly that clause 3.6.3 of the Federal Constitution refers to “Termination or Suspension of Membership”. However, a reading of clause 3.6.3 unambiguously refers to the substance of the decision that the Fedex took relating to me. It is therefore of direct relevance to this submission, and you cannot rely on the headline of the section to nullify its applicability. The fact that you appear to have done so compounds the unlawfulness of the decision to suspend me.
- There is even further evidence that the offer of 72 hours to submit reasons for why I should not be suspended is a sham. A report that appeared on the News24 website reads: “Shortly after [the leader’s initial announcement], the DA released a statement saying that Zille had in fact been given 72 hours to make representations, but members of the federal executive told City Press that the “notice was a mere technicality as the meeting had already resolved to suspend her”. Given this, together with the report in the Sunday Times where the votes of actual Fedex members vis-a-vis a decision to suspend are listed; and that the DA has not denied or repudiated these reports, it is reasonable to assume their contents are true and render any decision on this matter by the Fedex reviewable for this reason alone.
- The above amount to serious breaches of the party’s constitution, which is not the first time this has occurred in respect of the Party’s dealings with me in this matter. Given these facts, I am entitled to question whether there is any chance that the current Fedex is going to apply its mind objectively to the question of whether to suspend me, on the basis of this submission.
- For the sake of completeness, I repeat here that the Fedex has violated our constitution before, by rejecting out of hand the MANDATORY requirement for mediation in my matter. Given that so many black South Africans have expressed exactly the same views on the legacy of colonialism as I have (only in more forceful terms) and given that the DA has never raised any concerns about these views, let alone repudiated them, and has no written policy on the matter, I drew the conclusion that a contributing reason to my being charged is the fact that I am not black. Other events of the past few months have led me and others to the conclusion that, in certain instances, DA members are treated differentially on the basis of race. This interpretation was given further credence by the approach to two other disciplinary cases, one involving the social media post of a white member of the DA, and the other involving social media posts of a black member of the DA. This latest suspension decision merely reinforces the perception of unequal treatment.
- In these circumstances I am of the view that the entire process that you have now asked me to engage in, is both contrary to our constitution and a sham. I have also been alerted to the fact that there is an orchestrated campaign by “insiders” to accuse me publicly of obstructing the direction set by the current leadership, complemented by a public campaign involving a network of individuals to call on me to resign. This is a concerted effort to divert attention from the real cause of the problems the party is facing.
10. In order to avoid this myth being perpetuated, and despite the procedural flaws and constitutional violations already committed in this matter, I hereby provide reasons as to why I should not be suspended from participating in the party structures and activities where I currently serve, pending the final determination of the charges I am facing.
B Re: Grounds for intention to suspend
- In your letter, you refer to four factors that have been taken into account in Fedex’s decision.
- The first and third focus on the alleged seriousness of the matter, and the “need for the Party to demonstrate” this. In response to this aspect I submit that although I believe that the situation in which the DA finds itself over this matter is extremely serious, I do not believe that the charges justify the need to suspend me summarily or subvert our Constitution to the extent that Fedex has already done. Indeed, this will only compound the seriousness of the matter for the party. On the face of it, and based on other correspondence received, the motivation to suspend me now seems to be based more on a sense of vindictiveness because I have resisted attempts to make me accept a guilty verdict and a punishment — before a hearing even takes place.
- The question arises as to why Fedex did not suspend me when it decided to charge me. If there was a need to suspend me, based on the seriousness of the charges, this matter would have arisen far earlier, on 2 April, when Fedex took the decision to charge me. Its failure to do so was not an oversight. It is important for Fedex to note an interview given by James Selfe and published in the Cape Argus on 4 April 2017 which read:“Selfe also rubbished criticism Zille should have been suspended pending the outcome of the disciplinary process, saying “people in the DA are only suspended if there is a realistic prospect that they will interfere with an investigation or interfere with witnesses. Neither of these apply in respect of Ms Zille.”
- I have not sought to interfere with the investigation or interfere with witnesses, neither would I do so. I do not know who any prospective witnesses are. So, unless the chairman of the Fedex can prove otherwise, it would be irrational for Fedex to now resolve to suspend me. I contend that nothing has changed since Mr Selfe’s public statement above, which means that the proposed “suspension” must be motivated by other factors, on which I elaborate below, and which would be entirely unlawful.
- The contention that a different set of criteria will apply now because it is a suspension from “party structures” holds no water either legally or rationally.
- The second reason that has been given by you is the “ongoing harm to the Party’s reputation caused by this issue until it is resolved”. The ongoing damage to thparty in this matter is of its own doing. My original tweets, in a conversation about lessons from Singapore, were not in any way intended to harm the party, nor in any objective reading of them, could they be interpreted as doing so. It was the subsequent misinterpretation of my tweets as “defending”, “glorifying” or “justifying” colonialism that caused the damage. All I have done is try to correct these mis-statements and distortions. I am not the one who has held press conferences and made speeches, or statements, or continuously leaked misinformation to the media.
- When I received the leader’s letter asking me to desist from public comment, I agreed to do so “subject to maintaining my constitutional right not to be defamed and misrepresented, as I have been consistently…..” I also undertook to send drafts of what I intended to publish relating to this matter to you, or the leader, and that if my submissions were vetoed for publication, I requested the DA to correct factual inaccuracies, distortions and defamatory statements against me.
- I have upheld my undertaking. The Sunday Times article replying to Prof Ngwema’s attack on me was submitted to the leader’s office, and amended on the advice of the leader’s chief of staff before publication. (This is consistent with the way I have always interacted with the leader’s office). The Daily Maverick column on the implications of the recent SRC elections at UCT, was approved by the leader himself; and my letter to the Times was approved by you. I substantially changed the text of my Colin Eglin Memorial Lecture to comply with the leader’s directive, and I turned down an interview request with HARDtalk because they wished to discuss the issue.I also declined an interview with Justice Malala, and with a current affairs radio show. Thus I have sought to abide by the party’s request to me, following my receipt of it. I obviously had to also defend myself in the Provincial Legislature, as the Speaker allowed a debate requested by the ANC on this issue. I could not avoid doing so, nor could I continue to allow misrepresentations of what I had actually said to be perpetuated without being able to respond.
19. As the Fedex will know, I have been defamed repeatedly in respect of the matters before the Fedex over the past weeks, without responding, and therefore it is not correct to assert that I have harmed the party. In fact, it is extremely prejudicial to me that other prominent members of the party continue to speak out on the matter, thus harming the party and myself, while I am prevented from doing so. Indeed, it has now got to the point where it is taking on the dimensions of an organised campaign.
20. There have been several attempts over the last few weeks to force me to resign immediately, before a hearing takes place. Now that I have made it quite clear that I will not, and after the Party has delayed for over a month in giving me the further particulars that I requested to prepare my case, the Fedex has decided to suspend me. I regard this as a form of punishment for my insistence that we follow due process, and the decision is hence unlawful.
- The formal attempts to resolve the matter that you refer to, have all involved the condition that I resign as Premier, or plead guilty to an offence through apologizing for offences I did not commit, which would open the way for my expulsion from the party. It would also have serious implications for two other litigation processes that my office is currently engaged in opposing. I clearly cannot be expected to incriminate myself in that way, especially in the light of the precedent set by the party in a previous case.
- I have done nothing to breach my oath of office as Premier that warrants my resignation or removal from this office. Hence, I regard the attempts to “resolve” the matter on that basis as not being bona fide efforts to do so. They were attempts to punish me without a hearing, after the leader had pronounced on my guilt in advance in public.
- In fact, the actions and recent statements, including those by the Fedex, raise questions as to whether it is possible for me to have a fair hearing at all within the party, and I reserve my rights in this regard.
- In addition, it is clear that until such time as the party stops the leakage of misinformation to the media about my actions in this matter, I do not believe that my suspension from Party activities will, in any way, prevent further damage to the Party resulting from this issue. In fact, I believe the contrary to be true. I submit that it could be severely prejudicial because as Premier of the province, I have to be able to caucus with my colleagues in the Western Cape, and a failure to do so could result in embarrassment to the Party in the legislature and would severely retard my ability to lead the Western Cape government successfully in the build up to the next elections. In addition, the successes that we have achieved in the province provide an excellent platform for our 2019 campaign. Excluding me from sharing this within the party and the public will in fact have a negative effect on the party’s performance in 2019.
25. Responding to reports that the delay in the process has been due to me, it is important to place on record that the reason for the delay is a result of the Party not furnishing my legal representatives with the particulars I requested over a month ago. I am thus being doubly prejudiced, in that I have not been able to defend myself, and now my rights as a member of the Party are being taken away.
- The Leader was recently reported in the media as intending to block me from standing for provincial leader in the Western Cape. I denied any intention to stand at the provincial congress in September, but the fact remains that it is not within the leader’s rights to “punish” me in this manner, and allegedly with this motive, before the disciplinary process is finalized. Any ulterior motive of this kind (ie to prevent me contesting a leadership position) would make the decision challengeable on this basis too.
- It is quite clear that other factors, rather than the reasons stated, have motivated this Fedex decision to suspend me. These “other reasons” include a statement by the Leader on 4 May that “It has become quite evident that Helen Zille and I hold fundamentally different attitudes about the mission the Democratic Alliance needs to accomplish in 2019, and the goals and priorities that flow from this.”
- This conclusion could only have been drawn from a frank discussion initiated by the Leader with me, and held on 18 May, which we agreed, beforehand, was off the record and without prejudice. This discussion was held in the presence of my legal adviser. By using this discussion as a reason to now suspend me, means he has ignored these express legal provisos. The real irony is that these are the kinds of discussions that SHOULD be the substance of debate in a political party. If a person can be suspended for simply expressing a different view, in confidential conversations, to that of the leader, the DA is on a slippery slope, and no longer represents or upholds the values of freedom, fairness and opportunity. The consequences of this are dire in a political party. If the perception (or even reality) of a difference of opinion can be used to suspend me, then we will shut down debate in the DA. No-one else will feel free to express a contrary opinion to that of the leader, or if they do, they stand the risk of the same thing happening to them. This is a fundamental conflict with the principles and values enshrined in the DA Constitution.
- I refer now to the motion adopted by the Western Cape Provincial Council. You mention this motion as one of the reasons that the Fedex resolved to suspend me. Firstly, the motion was supported by motivations from Bonginkosi Madikizela, the interim Provincial Leader, and Debbie Schafer. Why are you only referring to the latter? The motion was had two proposers and three seconders: Basil Kivedo, Masizole Mnqasela and Ivan Meyer. It was drafted by Ivan Meyer, who also serves on Fedex. Furthermore, the motion was unanimously adopted at the Provincial Council. There was not one dissenting voice, despite the fact that there were several Fedex members present, including yourself.
- It appears that in this respect too, the Fedex is of the view that I am somehow the author of the motion. This is not true and is in fact an insult to the members of the Western Cape Provincial Council who brought and deliberated the motion.
- I wish to state that I had nothing to do with this motion (although I would have been perfectly entitled to if I had so wished). I did not propose it, draft it or motivate it. The idea emerged spontaneously from some of my colleagues, without input from me, and received strong endorsement. You state in your letter that “It is plain from that motion and its motivation that it – directly or indirectly – relates to the issues raised by your [my] conduct and disciplinary proceedings”.I am not sure what thought processes could possibly lead to a connection between my disciplinary proceedings, which relate to my tweets about the lessons I learnt in Singapore, and this motion. Nothing in the motion, nor in its supporting motivations, relate to the issues surrounding my disciplinary at all. In my view this conclusion is thus illogical and incorrect and does not provide a rational basis for suspending me.
- A response provided by you to an interview on 5 June with Eusebius McKaiser, you said a motivation for the suspension was to prevent me from “stirring things up”. This would appear to be an accurate explanation for the decision to suspend me, and would be unlawful, as you yourself conceded later in the interview.
33. Your earlier comment that “It is important that there be no suggestion that your participation in party structures has given rise to the motion or will affect its outcome“, is telling. What you, in fact, are saying is that you are concerned that the people who proposed and motivated this motion, have the same views that I do, and need to be separated from me in order to ensure that they will fall in line with the Leader. This is an implied insult to these members – suggesting they could not have proposed this motion on their own, and that it must have been a result of instigation by me — an assumption which is devoid of all truth. It also shows how Fedex is trying to clamp down on any dissenting voice in the Party, while using me as a scapegoat.
Re: My Apology
- Even though this is not in your letter, the Leader, in his widely quoted statement on the reason he gives for my suspension, says that one of the reasons for the decision to suspend me was because I declined to apologise unreservedly to South Africa and the DA for the “damage” I have done. This statement too does not accurately reflect the situation.
- On the morning that the tweets were sent (16 March 2017), I received a phone call from the Leader’s chief of staff about my series of tweets on the lessons I had learnt in Singapore. I was taken aback when Geordin said they were being read as a justification and defence of colonialism (which any objective reading will show they were not). Indeed, they were precisely the opposite, premised on the conclusion that colonialism and its legacy were primarily negative, but not ONLY negative. That view is shared by almost every serious historian on the subject.
- I intend to demonstrate at my disciplinary hearing how this distortion of my tweets occurred, and the process which drove the generation of public outrage.
- Despite the gross misinterpretation of my tweet, I nevertheless complied with Geordin’s request to apologise and posted the following: “I apologise unreservedly for a tweet that may have come across as a defence of colonialism. It was not.”
38. I repeated this sentiment in the urgent debate called by the ANC on the subject in Parliament as follows:
“This debate is about a series of tweets relating to lessons learnt from my recent visit to Singapore and Japan. None of them defended, justified or praised colonialism or apartheid. I can factually say that few in this house have put as much on the line to fight apartheid as I did.
Of course, colonialism had a diabolical impact worldwide, including South Africa. That was the very premise of my tweets. Anyone who read them without a personal or political agenda would have understood that. If you say the consequences of something were not ONLY negative, you are saying most WERE negative.
But if there was anyone who genuinely thought I was praising, defending or justifying colonialism, I apologised unreservedly and stressed that this was not so. I do so again. In South Africa, colonialism and apartheid subjugated and oppressed a majority, and benefited a minority, on the basis of race. This is indeed indefensible, and I have never supported, justified, praised or promoted it, as my life story attests.”
- It is important to note that in his correspondence with me, the Leader did not merely wish me to apologise unreservedly. He also sent me a list of statements he required the apology to include such as an admission that “my tweets and subsequent defence and justification of them brought the party into disrepute.”
- This is one of the offences I am charged with under the Federal Constitution. In requiring this admission of me, before the hearing, the Leader is opening the way for a conviction and sentence, while nullifying my right to a defence. There was no mention in the letter of the charges being withdrawn if I admitted guilt to an offence I do not believe I committed. This could have very serious implications that I hardly need to spell out.
- Finally, I dispute your statement that you are not legally bound to give me an opportunity to make representations on your intention to suspend me. Section 3.6.3 of the Federal Constitution obliges you to do so, and I submit that section 11.6.5 cannot remove that obligation, which is a basic requirement of fair administrative process.
- All the above notwithstanding, it has become clear to me that the majority of Fedex members do not wish for me to currently attend its formal meetings or activities pending the determination of my disciplinary hearing. I note that before the Fedex took the decision to suspend me, I was already being excluded from party activities and events.
- Whilst I have been profoundly hurt by the way this matter has been handled by Fedex and the unfounded accusations that are being levelled against me by the leadership currently, which I can only style as a vindictive and personal campaign against me, I have no intention of participating on a DA Fedex or Federal Council under current circumstances. As the Leader knows, I have asked him, before every Fedex since this issue arose, whether he would prefer me to absent myself. When he answered in the affirmative, I stayed away in order to make matters easier for him. Given this background, had Fedex asked me to consider voluntarily not attending Fedex or Federal Council meetings whilst my disciplinary matter is ongoing, I would have willingly agreed. I therefore hereby volunteer not to attend any Fedex or Federal Council meeting or related matter in my current capacity (i.e. as a co- opted member), until my disciplinary matter is resolved, one way or another. This will hopefully alleviate the need for Fedex to take another unlawful decision to suspend me from those party structures and a costly time-consuming court case that could then ensue. This decision should however not be construed as me accepting that there is a basis for suspension. Instead, it is underpinned by two core considerations, first, that the matter has already been prejudged and accordingly my rights to a fair process have already been compromised and second, in the interests of saving the party any further reputational damage, cost or time wastage.
44. I would be grateful if Fedex and the leadership portray this decision as being what it is: an honest attempt by me, and at my initiative, to save the party any further reputational damage, cost or time wastage.
45. However I cannot agree or volunteer to do the same in respect of my current membership of the DA Provincial caucus and council, given that my attendance at these bodies is important to my continued involved and proactive leadership of the Provincial Government and in line with the DA’s goals and objectives, as well as any other party activities where I am requested to share my expertise and experience to the benefit of the party.
The above are the reasons why I believe an unbiased Fedex needs to re-apply its collective mind, and reach a different conclusion to the one reached on Saturday 3 June, and announced by the Leader subsequently.
My deadline for submitting these reasons is 17h00 on Tuesday 6 June (today). I have been given to understand that a Fedex telecon has been organized for 19h00 to consider this submission and make a decision. Given my concerns raised above, regarding the disqualifications of Fedex members to take this decision now, and the weight of my submission, it is inappropriate for any such decision to be taken at this speed and on this basis. I urge you to give my submission proper analysis and detailed consideration so as to avoid further irregularities in this matter.
Helen Zille DA Member