Recommendation of Panel on breach of code of conduct by Mrs WN Madikizela Mandela: deliberations

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JOINT COMMITTEE ON ETHICS AND MEMBERS INTERESTS

ETHICS AND MEMBERS INTERESTS JOINT COMMITTEE
22 August 2002
RECOMMENDATIONS OF PANEL ON BREACH OF CODE OF CONDUCT BY MRS NW MADIKIZELA MANDELA: DELIBERATIONS


Chairperson: Mr L Landers (ANC)

Documents handed out:
Committee Report on Breach of Code of Conduct (Appendix 1)
Recommendations of Panel Considering Breach of Code of Conduct (Appendix 2)
Supporting documentation [e-mail
info@pmg.org.za for documents]

SUMMARY
The Chair read through the recommendations of the panel considering the breach of code of conduct of Mrs NW Madikizela Mandela, and disclosed its findings with regard to the penalties to be imposed on Mrs Madikizela Mandela.

MINUTES
The Chair stated that the purpose of the meeting was to propose the findings of the panel which considered the breach of the code of conduct by Mrs NW Madikizela Mandela, and the report of the Committee on its findings.

The Chair then read through the Recommendations of the Panel (please refer to the attached document). These included a background to the establishment of the Panel, the outcome of the hearing with the Panel, the allegations laid against Mrs Madikizela Mandela and the consideration of the evidence presented at the hearing. He also disclosed the recommendations of the Panel and the reasons for their decisions, which are as follows. With regard to the first charge of non-disclosure of donations received the Panel finds Mrs NW Madikizela Mandela guilty. On the second charge of non-disclosure of financial interests in respect of the Winnie Mandela Family Museum a finding of guilty was also rendered.

He noted that the Panel recommended the following penalties: that Mrs Madikizela Mandela be severely reprimanded by the Speaker in the National Assembly, and that she be penalised with a reduction to the equivalent of a period of fifteen days salary. The Panel made further recommendations regarding her failure to attend the hearing and the impression created by her statement on 11 February 2002 that she misled the court in her bail application.

The meeting was adjourned.

Appendix 1:
JOINT COMMITTEE ON ETHICS AND MEMBERS' INTERESTS
REPORT OF THE JOINT COMMITTEE ON ETHICS AND MEMBERS' INTEREST ON THE BREACH OF THE CODE OF CONDUCT BY HON MRS NW MADIKIZELA MANDELA MP.
21 AUGUST 2002.


1. BACKGROUND

The Joint Committee on Ethics and Members' Interests meet on 20 August 2002 at 5pm room V119 Parliament to consider the recommendations of the panel which presided at the hearing of Mrs NW Madikizela Mandela.

The panel was appointed at a meeting of the Committee on 8 May 2002 in terms of paragraph 3.5 of the Procedure for the Investigation of Complaints.


2. CONSIDERATION OF CORRESPONDENCE BY MRS MANDELA'S ATTORNEYS.

    1. The Committee was informed that on 13 August 2002, Mrs Madikizela Mandela was advised of the recommendations of the panel. Mrs Madikizela Mandela was further advised that she would be entitled to make representations to the Committee at its meeting on 20 August 2002 in respect of the recommendations of panel.
    2. On 16 August 2002 Mrs Madikizela Mandela's attorneys responded that she has a medical certificate for the period 19 July 2002 -31 August 2002. The Committee noted that the letter did not request that the meeting be postponed; instead it questioned the procedure of the panel.
    3. In terms of item 20(a) of the Code the National Assembly must adopt the finding of the Committee. It is noted that Mrs Madikizela Mandela is entitled to make a statement to the National Assembly when it considers the decision of the Committee.

The Committee agreed unanimously to proceed with the hearing as they were of the view that the panel made its finding based on documents before them and noted that Mrs Mandela still had the right to make representation to the National Assembly before the report was accepted.

3. The Committee adopted the report of the panel unanimously with the following amendments. (Attached)

3.1 Amendment 1.

In clause 2.6 add on 23 July 2002 in the final line to read:

Three attempts were made by the Sheriff of the Court to serve Mrs Mandela with the notice of hearing- on 16/7 at 10:00, 17/07 at 14:45, 19/07 at 15:25. On each occasion Mrs Madikizela Mandela was not present to receive the notice. In consultation with Mr Mushwana the Sheriff was advised to serve the notice to whoever was present at Mrs Madikizela Mandela's residence. Mr PW Gosani who identified himself as Mrs Madikizela Mandela's personal assistant accepted the notice on 23 July 2002. (Annexure 5)

3.2 Amendment 2.

On 2.10 of the report the word deal must be added and Legal Advisers must be substituted by Law Advisers to read:

Before proceeding the panel considered whether the sub judice rule applied in this case. The panel took note of the legal opinion of the Parliamentary Legal Advisers which states that the information of the bail application relates to a concluded pre-trial procedure and the information to be considered by the panel relates to the bail application and does not deal with the merits of Mrs Mandela's trial; and accordingly ruled that the sub judice rule was not applicable to the enquiry being considered. (Annexure 4)

3.3 Amendment 3

The number sequence after the point 2.2 must change be edited so that the second2.2 becomes 2.3 and 2.3 becomes 2.4, 2.4 becomes to 2.5 etc.

3.4 Amendment 4

The words The panel considered a third charge of must be added at the beginning of clause 3.7 to read:

A panel considered a third charge of wilful attempt to mislead the Committee in your response to the complaint made against you.

3.5 Amendment 5

Clause 3.8 must be replace this with that the third charge to read:

The panel agreed that the third charge is not defined as a breach of the Code of Conduct and therefore cannot apply. Consequently the panel recommended that these charges be dropped.

3.6 Amendment 6.

In clause 4.2 delete from and add of and delete the word bail application which has been duplicated to read:

The panel also considered documents received from Jan Ferreira of the Specialised Commercial Crime Unit pertaining to Mrs Mandela's bail application. (case number 14/9001/01)

3.7 Amendment 7

Change Registration to lower case to read:

Documents from the South African Companies Registration Office pertaining to the registration of Winnie Mandela Family Museum CC enterprise number 2001/044386/23. According to form CK1 signed on 21 June 2001, Mrs Madikizela Mandela ID number 3609260323089 is the sole Member.

(Annexure 9)

3.8 Amendment 8

In clause 4.9 delete word disclosure and replace with disclose to read:

The panel also considered the Family Museum and noted that the Code stipulates that Members must disclose any financial interests even if members do not draw benefits. The CK1 form of the Winnie Mandela Family Museum CC disproves Mrs Madikizela Mandela's denial.

3.9 Amendment 9

Under 6.1(a) the word Speaker in the National Assembly must be added to read:

Severely reprimanded by the Speaker in the National Assembly.

3.10 Amendment 10.

In 7.1 clause the word panel must be substituted by Committee and the word Committee in the second last line should be replaced by Parliament to read:

The Committee notes that Mrs Madikizela Mandela's non-attendance at the hearing may be construed as contempt of Parliament and therefore Parliament should consider whether any further action be initiated in this regard.

3.11 Amendment 10

In clause 7.2 the word panel must replaced by Committee in the first and third line. In the second line add may have in line 3 and the word Committee to be replaced by Parliament to read:

The Committee notes that Mrs Madikizela Mandela's statement of 11 February 2002 creates the impression that she may have misled the court in her bail application. The Committee recommends that Parliament find a mechanism to deal with this matter and if necessary that it be referred to the relevant authority.


Appendix 2:
JOINT COMMITTEE ON ETHICS AND MEMBERS' INTERESTS

RECOMMENDATIONS OF THE PANEL CONSIDERING BREACHES OF THE CODE OF CONDUCT BY HON. MRS NW MADIKIZELA MANDELA, MP


07 August 2002

Chairperson: Mr Landers

Present

Mr C Aucamp (AEB)

Rev M Chabaku (ANC)

Mr PA Matthee (NNP)

ML Mushwana (ANC)

Mrs S Seaton (IFP)

In Attendance

Ms F Mahomed (Registrar of Members' Interests), Mrs F Isaacs (staff), Mr D Ramurunzi (Parliamentary Law Advider) and Ms T Mabona (staff).

 

1. BACKGROUND

The Joint Committee on Ethics and Members' Interests at its meeting of 8 May 2002 agreed that a panel, in terms of Section 3.5 of the procedure for the Investigation of Complaints, should be convened to consider the allegations against Mrs NW Madikizela Mandela. The panel was mandated to preside at the hearing on the complaint against Mrs Mandela, and make recommendations to the Committee.

2. HEARING

2.1The hearing commenced at 10:30. By 10:34 Mrs Madikizela Mandela had not arrived. The Chairperson asked the Registrar to explain whether Mrs Madikizela Mandela received sufficient notice to attend.

    1. The Registrar explained that the Joint Committee on Ethics and Members Interests at its meeting of 8 May 2002 agreed that Mrs Madikizela Mandela be called to a hearing.
    2. Mrs Madikizela Mandela was served with a notice to attend a hearing on 9 May 2002 at 9:45am. (Annexure 1).
    3. Through attorney Savage, Jooste and Adams dated 15 May 2002; Mrs Madikizela Mandela requested that the hearing be postponed. (Annexure 2)
    4. A notice informing Mrs Madikizela Mandela's of the revised date was sent to her office in parliament and her office at the ANC Women's League on 22 May 2002. She was advised that the hearing was re-scheduled for 12 June 2002. (Annexure 3).
    5. Mrs Madikizela Mandela did not arrive at the hearing on 12 June 2002. As there was no written confirmation of service to Mrs Madikizela Mandela the panel agreed that a new notice be served through the Sheriff of the Court to prevent any dispute on the service of notice.
    6. Three attempts were made by the Sheriff of the Court to serve Mrs Mandela with the notice of hearing- on 16/7 at 10:00, 17/07 at 14:45, 19/07 at 15:25. Mrs Madikizela Mandela was not present to receive the notice. In consultation with Mr Mushwana the Sheriff was advised to serve the notice to whoever was present at Mrs Madikizela Mandela's residence. Mr PW Gosani who identified himself as Mrs Madikizela Mandela's personal assistant accepted the notice. (Annexure 5)
    7. On 30 July 2002, Mrs Madikizela Mandela communicated to Mr Landers that the notice which was sent to her residence had gone astray and requested that the notice be sent to Mpho facsimile number 011 3768428. Mpho verbally confirmed that he received the fax. (Annexure 6).
    8. The Panel unanimously agreed that Mrs Madikizela Mandela had received sufficient notice to attend the hearing.
    9. The panel took note that the Notice of hearing advised that proceedings would continue if the Member did not attend. The panel agreed that hearing are intended to give the members an opportunity to present the facts pertaining to any allegation and should the member not use the opportunity to present the facts then the panel must proceed with the information at hand.
    10. Before proceeding the panel considered whether the sub judice rule applied in this case. The panel took note of the legal opinion of the Parliamentary Law Advisers which stated that the information of the bail application relates to a concluded pre-trial procedure and the information to be considered by the panel relates to the bail application and does not with the merits of Mrs Mandela's trial and accordingly ruled that the sub judice rule was not applicable to the enquiry being considered (Annexure 4).

4.ALLEGATION AGAINST MRS MADIKIZELA MANDELA

    1. It is alleged that Mrs Madikizela Mandela did not comply with the Code of Conduct with regard to Financial Interests. The Code of Conduct is an addendum to the Joint Rules of Parliament.
    2. Section 16 of the Code states that a member breaches the Code, if the member-

  1. Contravenes or fails to comply with a provision of this Code;
  2. When disclosing registrable interests, wilfully provides the Registrar with Incorrect or misleading details.

3.3 Non-disclosure or Donations received.

3.4Section 8(e) (f) (g) as stated below, stipulated that members must disclose all gifts, hospitality, sponsorships and benefits.

3.5 (e) Sponsorships

  1. The source and description of direct financial sponsorship or assistance from non-party sources
  2. The value of the sponsorship or assistance.

(f) Gifts and Hospitality

  1. A description and the value and source with a value in excess of R350;
  2. A description and the value and source of a gift from a single source which cumulatively exceeds R350 in any calendar year; and
  3. Hospitality intended as a gift in kind.

(g) Benefits

(i) The nature and source of any benefit of a material nature; and

  1. The value of that benefit.

3.6 Non-disclosure Financial Interests or Directorships in respect of the Winnie Mandela Family Museum.

The Section 8 (a) of the Code stipulates that Members must disclose:

(a) Shares and financial interests in companies and other corporate entities.

  1. The number nature and nominal values of shares of any type in any public or private company
  2. The name of the company; and
  3. The nature and value of any other financial interests held in a private company or any other corporate entity.

(c) Directorships and Partnerships

  1. The name and type of business activity of the corporate entity or partnership.
  2. The amount of any remuneration received for such directorships or partnerships.

3.7 Wilful attempt to mislead the Committee in your response to the complaint made against you.

3.8 The panel agreed this charge is not defined as a breach of the Code of Conduct and therefore cannot apply. Consequently the panel recommended that these charges be dropped.

4. Consideration of the evidence presented.

4.1 A copy of Mrs Madikizela Mandela 2001 disclosure was scrutinised- it is noted t hat Mrs Madikizela Mandela did not disclose any gifts, hospitality, sponsorship or benefits. There was also no disclosure regarding Mrs Madikizela Mandela's Interests in the Winnie Mandela Family Museum. (Annexure 7).

4.2 The panel also considered documents received from Adv. Jan Ferreira from the Specialised Commercial Crime Unit pertaining to Mrs Mandela's bail application bail application (case number 14/9001/01)

4.3 The sworn affidavit made by Mrs Madikizela Mandela on 18 October 2001, states under point 5 " My expenditure exceeds my income by far and I rely mostly on donations from friends, supporters and well wishers." (Annexure 8)

4.4 The Panel also considered documents from the South African Companies Registration Office pertaining to the Registration of Winnie Mandela Family Museum CC enterprise number 2001/044386/23. According to form CK1 signed on 21 June 2001, Mrs Madikizela Mandela ID number 3609260323089 is the sole Member. (Annexure 9)

4.5 The Panel considered Mrs Madikizela Mandela 's letter of 11 February 2002, in which she states under paragraph 1 "The Museum belongs to the Mandela children and I have no personal financial interests in it, the books are open for inspection if you so wish. It is a family home like all of you have your family homes. By now you surely know that the matter is under litigation against Mandela and Motlanyana and I can say no further. For more information you may contact Advocate Ismail Semenya and others.

4.6 Under paragraph 3 Mrs Madikizela Mandela states "your question based on nonsensical speculative media reports, reporting to the quotes from my lawyer who were instructed on the very day of my arrest is inaccurate. Surely it is inconceivable even to an imbecile that "I" alone can consume groceries of R10000 a month that is beyond any logical thinking. Is it really possible for anyone even the "supernatural" "Winnie " to get donations of R50 000 per month? Lawyers throughout the world are known to argue anything to save their clients. I was not even aware that in their desperation to get me out on bail they inferred this type of information." (Annex 10)

4.7 The Panel also noted that Mrs Madikizela Mandela did not respond to requests for further information on 19 February 2002. (Annexure 11)

4.8 In consideration her sworn affidavit and Mrs Madikizela Mandela denial in her letter to the Committee on the 11 February 2002, the Committee agreed that more weight must be attached to the affidavit.

4.9 The panel also considered the Family Museum and noted that the Code stipulates that Members must disclosure any financial interests even if members do not draw benefits. The CK1 form of the Winnie Mandela Family Museum CC disproves Mrs Madikizela Mandela's denial.

5. UNANIMOUS FINDINGS OF THE PANEL

5. Charge No 1

5.1 Non-disclosure of donations received:

5.2 Finding: Guilty

5.3 Reason: the panel finds Mrs Madikizela Mandela guilty on the basis of an admission she made and which was handed in at the bail application of case 14/9100/01 on the 18 October 2001. To this end, the panel finds that Mrs Madikizela Mandela contravened Section 16(a) read with Section 8(f) and 8(g) of the Code of Conduct for Members.

5.4 Charge no 2

5.5 Non-disclosure of financial Interests in respect of the Winnie Mandela Family Museum.

    1. Finding: Guilty
    2. Reasons: the panel finds Mrs Madikizela guilty of having contravened Section 16(a) read with Section 7(a) and 8(a) of the Code of Conduct, in that she did not disclose the Winnie Mandela Family Museum and her interest therein.

6. PENALTY

6.1 For the purposes of sentencing:

The panel recommends that Mrs Madikizela Mandela be:

    1. Severely reprimanded
    2. Penalised with a reduction of the equivalent of a period of (15) fifteen days salary.

7. FURTHER RECOMMENDATIONS

    1. The panel notes that Mrs Madikizela Mandela's non-attendance at the hearing may be construed as contempt of the Committee and therefore the Committee should consider whether any further action be initiated in this regard.
    2. The panel notes that Mrs Madikizela Mandela's statement of 11 February 2002 creates the impression that she may have misled the court in her bail application. The panel recommends that the Committee find a mechanism to deal with this matter and if necessary that it be referred to the relevant authority.

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