Matters arising from last meeting on composition of Committee, Parliamentary Legal Adviser's briefing, Nomination of Initiator

Powers and Privileges of Parliament

04 September 2014
Chairperson: Mr B Mashile (ANC)
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Meeting Summary

The Chairperson clarified the membership of the Committee, and the presence of some alternate Members. The Committee spent considerable time debating whether a letter addressed to the EFF by the Speaker could be discussed as an additional agenda item, and it was eventually decided to deal with it under “Matters arising” from the last meeting, insofar as it related to the EFF members sitting on the Committee, but decided that the content of that letter must be clarified, in the first instance, between the EFF and the Speaker, as this Committee could not take on such matters of its own accord, as they did not fall within its jurisdiction unless referred, as issues to do with proceedings in the House and the Speaker normally came to a Rules Committee. Feelings between Members ran high at several points of the meeting, with Members from the EFF and ANC engaging in debate over the appropriateness of remarks, and whether points of order were being fairly raised and decided upon.

The Committee moved to adopt the minutes of the meeting on 1 September 2014. An EFF Member raised a query whether it was correct that the Committee was to determine who were the 20 people who would appear before the Committee. It was confirmed that the wording of the minutes on that point was incorrect and the sentence was deleted altogether as it did not correctly reflect what Members recalled had happened at the meeting. The minutes were the adopted, in their amended form.

Turning to the agenda item dealing with Matters Arising, the Committee debated again the issue of the letter addressed to the EFF by the Speaker, and tabled an opinion prepared, following the decision of the Committee at its last meeting, from the Parliamentary Legal Advisers on the question of whether a person accused of contempt of Parliament may serve on this Committee whilst it was debating that particular matter, whether that person may serve whilst the Committee was considering similar charges arising out of the same incident against other MPs, and finally addressing the suspicions whether this Committee could be biased because its members were drawn from political parties who had expressed views on the incidents in the House. In presenting his opinion, the Parliamentary Legal Adviser outlined the wording of section 12(3) of the Powers and Privileges of Parliament Act, the requirements of the Constitution and Rules around the representation of minority parties, and noted that there was no specific Rule that directly addressed the question of a member of a Committee being implicated in the matter being discussed. However, the rules of natural justice would apply and those implied, firstly, that parties had the right to be heard, and that they should recuse themselves from any situation where they might be acting as judge and accused simultaneously. In relation to who may serve on the Committee, it was pointed out that the Rules and procedural fairness would apply and that if a Committee member from a minority party was precluded from acting, another MP from the same party could act instead. If there were to be 20 EFF members charged, there were five remaining who would still be able to be called in as substitute. The question was raised whether other Members who had been witnesses to the matter would also be precluded, but it was pointed out that these proceedings were quasi-judicial in nature, and that mere knowledge of a situation, or a certain viewpoint being held, would not in itself imply bias. It was the conduct of the MPs hearing the matter at the hearing itself that would show their impartiality. An EFF member asked if the fact that certain Members sitting today on this Committee had been seen trying to open the doors of the House on the day in question would not suggest that they were biased, but the legal advisers pointed out that this was a separate issue, that spoke to the merits, and a Member would be free to raise this separately at the time when Members were hearing the matter.

The Committee had previously resolved that, rather than a current or former MP being asked to act as initiator, an outsider with relevant experience and qualifications be requested to act. One nominee had been mentioned at the last meeting, but Members felt that more names should be put forward and so three CVs were presented. The ANC initially nominated one, but when the DA nominated another (the person who had been the initial suggestion) the ANC withdrew today’s nomination and agreed to request Mr Randall van Voore, as the candidate acceptable to both parties, to act. The IFP said it did not want to reach the situation where a vote was taken but had no objection to the candidate. The EFF objected, and suggested that a retired judge would be more appropriate. By consensus decision, Mr van Voore would be approached and he would also be requested to finalise the notifications, and make sure that they were received by all relevant persons.

Meeting report

The Chairperson noted that this meeting would basically be following up on the last meeting, held on 1 September.

He noted apologies, and noted the presence of three “co-opted” members from the ANC.

Mr M Mdakane (ANC) said that before moving for the adoption of the agenda, he wanted to clarify who was actually present. He suggested that there had been nobody else officially co-opted, but said that there were three ANC members who were standing in, as alternates, for this meeting, making seven ANC Members present in all.

The Chairperson read out the names of those appointed to serve as ANC Members on the Committee, and said that three were not present, but were represented here by alternates Mr B Bongo, Mr M Booi and Mr Mthembu. The DA Members, both of whom were present, were Ms A Lotriet and Mr S Esau. Mr F Shivambu, and Ms K Litchfield-Tshabalala as alternate, were present from the EFF. The IFP representative, Mr M Mncwango, was present, but Mr M Filtane (UDM) was not, neither was any alternative from that party. Anyone else who might be present, but whom he had not named, did not serve on the Committee.

Mr F Shivambu (EFF) suggested, in respect of the agenda, that a new item must be inserted after “Matters Arising” – namely, discussion on the letter addressed to the EFF by the Speaker, relating to alternate members for the Committee, and that the remainder of the items be renumbered.

Ms A Lotriet (DA) said that the referral of the incidents could be discussed first.

The Chairperson clarified that this was a new matter on the agenda, not relating to the item already listed.

Mr M Booi (ANC, alternative) said that the agenda should be adopted as it presently stood; Mr Shivambu was the only person who knew of this item that he had raised.

Mr C Nqakula (ANC) said that if the letter from the Speaker dealt with the position of Committee membership, then surely that point should have been made when the Members were being discussed earlier. He was not sure what the purpose was of tabling this letter. He said he would like to avoid setting a precedent where any Member was allowed to raise anything in any meeting. He suggested that space could be re-opened for Mr Shivambu to speak to the question of membership, but he was not sure that this should be a separate item.

The Chairperson wanted to clarify that this was a letter written to the EFF by the Speaker, not a general document speaking to the topic of alternate Members. Given that it was an issue specific to the EFF and Speaker, which affected only that party, the EFF may need to engage with the Speaker directly, rather than making this the business of the Committee, and the Speaker would then revert to the Committee if this was indeed a matter that fell within the jurisdiction of this Committee.

Mr S Esau (DA) suggested that this could be easily resolved, under “Matters arising”, which was in any event to deal with membership on the Committee, and it was not necessary to insert another item.

Mr Booi wanted to raise a point of order. He wanted some clarity as to what the letter was about. Mr Esau was now referring to the minutes, which was a separate matter.

Mr Shivambu, at the request of the Committee Chairperson, said he would clarify the concerns. He said that he was disappointed to note that the Chairperson was “a terrible Chairperson”..

Mr Booi raised a point of order and objected to the language used.

Mr Shivambu persisted in speaking despite the Chairperson wanting to address that point, and proceeded to say that this was a simple process, and he was trying to explain why the letter should be presented, and that he felt very strongly that this was a matter to be on the agenda. The second issue was that the remarks of the Speaker must be addressed.

Mr Booi reverted to his point of order. He asked that Mr Shivambu should mind his language and not refer to the chairperson as “terrible”.

Mr Shivambu retorted that he was entitled to call anyone anything.

Mr Booi asked for retraction of the statement. He asked that the Chairperson proceed with the meeting.

The Chairperson sustained the objection and requested that Mr Shivambu retract his statement.

Mr Shivambu said that he would not; he maintained that the Chairperson was chairing the meeting incorrectly. He asked when people would be able to discuss substantive items, if, when he wanted to put an issue on the agenda, the Chairperson merely ruled that it could not be discussed.

The Chairperson noted that Mr Shivambu was refusing to retract the wording that insinuated that the Chairperson was “horrible”.

Mr Mdakane said that the whole reason behind the earlier discussions was that, in order to decide that the item was indeed relevant to the agenda, Mr Shivambu had been asked to indicate what was in that letter. Other Members had not seen it and did not know of the content. He questioned whether, for instance, it would be correct for any Member to be allowed to read out any letter addressed to the Member individually and directly. The reason for asking for details was to apprise Members so that they could reach a decision.

The Chairperson asked Mr Shivambu to clarify what the letter from the Speaker was about.

Mr Shivambu replied that the Speaker had written a letter about alternative members, and he was questioning why she had apparently said that  Ms Litchfield-Tshabalala could not be a member of the Committee, by reason of the fact that there was perceived to be a conflict of interest, which affected the process. This issue had to be addressed by the Committee as it went directly to the question of the Committee process. The EFF did not understand why the Speaker said that the EFF could not have alternatives serving on the Committee, despite the fact that there was not a Rule to cover that. The EFF wanted to know how to proceed in this situation.

Mr Booi said that what Mr Shivambu had outlined seemed to indicate that the EFF had a good point for wanting the letter discussed. Perhaps, in consultation between the Speaker and the Chairperson of this Committee, the letter needed to be clarified. Anything affecting the membership of the Committee should be the subject of consultation with the Chairperson, and he suggested that this was possibly a way forward.

Mr Nqakula thought that the best way forward was to recognise that this matter was one essentially between the EFF and the Speaker. The EFF should, in that case, revert to the Speaker for a direct engagement and ask for an explanation. As matters stood currently, the Committee could not discuss something that was known only by the Speaker and he believed that the Committee had no jurisdiction on the correspondence.

Mr Mncwango said that he thought that some points were being missed. The issue was not so much the content of the letter (although, like Mr Booi, he agreed that there was an issue that this raised), but rather the placement of the item on the agenda. If Members now agreed that the content warranted further consideration by the Committee, then it must be discussed at a relevant point.

Mr Esau said that he had earlier expressed his views, and there was a legal opinion presented to Members. Point 6 on the agenda was a consideration of “Matters Arising” and that referred to alternate members, and those implicated in the disruption of proceedings in the House, so he believed that it would be apposite to discuss this under “Matters arising”.

The Chairperson noted that at the last meeting it was agreed that a legal opinion on the issues raised would be provided, and he suggested that this be discussed. In the meantime, he asked that copies of the letter from the Speaker to the EFF be circulated.

Mr Bongo repeated his proposal that the Agenda be adopted in its present form, and that the discussions on the matters raised by Mr Shivambu could take place under the item for “Matters Arising”. He reiterated that he believed that the EFF and Speaker needed to engage on the content of the letter separately.

The Chairperson said that there were no serious contradictions between the parties. Mr Shivambu’s points would be discussed under the “Matters Arising” heading, and it would not be noted as a separate heading. In relation to what the Speaker had said, he noted that when the events occurred in the House, the EFF had risen to record an objection and that was not entertained. He wanted a proper record in this Committee of what the Speaker had said. He asked Members to give their opinions as to whether this Committee had any power to review what the Speaker had said in the House.

Mr Booi said that the Committee could look into that as it was a matter of process, and suggested that the Committee could note the matter for the moment, and it could be dealt with at an appropriate time and perhaps at a particular level.

Mr Esau noted that any matter pertaining to the Speaker in the House was usually referred to the Rules Committee. This Committee today was an extension of the Rules Committee, and could only deal with specific issues referred to it by the Speaker.

The Chairperson asked Members to agree that this was a matter that could be raised in this meeting but it may be more appropriate to raise it in the Rules Committee.

Mr Shivambu wanted the minutes to reflect that he had raised, in this Committee, the remarks of the Speaker in the NA.

Mr Nqakula made the point that whenever an allegation was made, there was bound to be contestation on that from others. Only when the matter had been thoroughly aired at the lowest level should issues be raised to another level, if they still remained unresolved. He contended that if any party was unhappy with anything, it should pursue the appropriate steps as far as possible, and if the problem persisted, only then take it to another level – such as this Committee – to unlock the processes. He noted that this was how matters unfolded in the legal arena also. If that principle was not upheld, this Committee ran the risk of being “reconstructed” as a vehicle for giving first-line assistance, before a person had exhausted all other avenues. He was not sure exactly what the matters involved, but repeated that it would be correct for the EFF to discuss the matter and the content of the letter first with the Speaker.

Mr Mdakane asked that the Committee move forward with the agenda. When the Speaker made the comment, Mr Shivambu had raised his objections, in the House. There was no need, therefore, to put this in the official Committee minutes.

The Chairperson repeated that he had raised a question whether this Committee had the power to review anything the Speaker had said in the House. He would be reluctant for the minutes to reflect anything that suggested that the issues in relation to the Speaker’s comments had been debated at this meeting, and he agreed that the EFF should engage with the Speaker to note its dissatisfaction on the comments, and if there was no agreement on the question of alternative membership, then the matter should be referred to the Rules Committee.

Mr Shivambu was not sure why there was difficulty about noting something in the minutes. The objection was not recorded in the NA’s minutes.

Mr Bongo raised a point of order, noting that the Chairperson had made a ruling and that the meeting should proceed.

The Chairperson sustained the objection.

Mr Shivambu interrupted and asked that the EFF should not be “abused like that”. He wanted to bring to the attention of the members that the minutes of the NA did not reflect the objection raised in the House, and that was problematic.

The Chairperson asked that the EFF allow the meeting to proceed. The responsibility for the minutes lay with the Secretariat for Parliament, and Hansard would reflect exactly who said what. This Committee had no powers to review what had happened in the House, and there were specific centres of authority in Parliament to address any unhappiness. He had tried to provide clarity. He noted that there had been a proposer and seconder for the adoption of the Agenda.

Ms K Litchfield-Tshabalala (EFF) provided clarity that the EFF was not asking this Committee to review the remarks of the Speaker. It would be problematic if the Committee were to base its decisions on the NA minutes.

The Chairperson said that he believed that clarity had already been given on that point. In the absence of no objections being noted for the adoption of the Agenda, he said that it would be adopted.

Minutes of meeting 1 September 2014
The Chairperson confirmed that the minutes had been circulated. He asked Members to raise any necessary corrections, page by page. He reminded Members that it would not be easy to capture every piece of input made by Members; it was the resolutions that were essentially being captured.

Ms Lotriet noted, on page 3, that a typographical correction was needed to the numbering.

The Chairperson confirmed that the Committee had asked that persons from outside Parliament should be sought who were suitably qualified, to make proposals to the Committee.

Ms Lotriet confirmed that point (8) dealt with the appointment, but the problem was in the numbering.

The Chairperson confirmed that the rest of the numbers would then be corrected.

Ms Litchfield-Tshabalala sought clarity on page 4, paragraph 11 (f), and asked if the Committee was to determine the 20 people who appeared before the Committee.

The Chairperson noted that the reference to 20 members of the EFF should not be present.

Mr Booi said that the EFF members who were under investigation could clearly not call themselves, and so the sentence was not properly phrased. The Table Staff would need to give guidance.

Ms Kilian thought that the following should be an alternative wording: “Committee Members to receive advice from the Table Staff and Parliament to determine who, of the 20 EFF members cited, should be called by the Committee”

Mr Nqakula said that the Committee must take care not to be accused of violating anyone’s rights. When a hearing took place, anybody who had relevant information should be available. It was not for any one person to determine who to call and who to exclude. The inquiry body itself would not restrict the information provided, although it could later determine whether the information was relevant. He wanted to avoid any suggestion that there was an attempt to delimit people.

The Chairperson said that those present at the Committee meeting on 1 September must agree on their understanding of what had transpired.

Mr Booi said that if the matter was to be opened for debate, as there were some challenges, then it must be noted in the Matters Arising section.

Mr Mncwango said that what appeared in the minutes seemed to be at variance with the original letter from the Speaker, where she had enumerated the sources of evidence that the Committee could use. The Speaker spoke to, amongst others, unrevised Hansard, minutes, statements, video recordings, audio recordings and others, whereas the comment noted here appeared to be limiting the matter to advice given by the Table Staff.

The Chairperson said that the implications of the issue would indeed be discussed under “matters arising”. Ms Kilian had suggested some wording, and he suggested that the Members deal with that first, and then discuss the matter further.

Mr Mdakane said that individuals were making input, but the Committee had said it needed to be clear and unambiguous on the process and procedures. There was general discussion on the matter. There was not a decision taken at the meeting, so what was currently in the minutes did not in fact determine the essence of what was to be discussed.

Members agreed that, because of the ambiguity, (f) should be deleted from the minutes. They then agreed to adopt the minutes, as amended.

Matters Arising
Mr Mncwango asked if Ms Moloi-Moropa was to continue being a member of the Committee, in light of the fact that she was indisposed at the moment.

The Chairperson noted that her absence was due to sickness, but confirmed that she was still a member of the Committee.

Mr Shivambu referred to page 2, and said the point whether the EFF could continue to serve on the Committee was linked to the letter from the Speaker that he had raised earlier. The first sentence also made reference to the Chairperson being aware of something.

The Chairperson asked for clarity from Mr Shivambu as to what exactly he was raising.

Mr Shivambu noted that this point was on page 3.

The Chairperson asked Members firstly to confirm that they did not want to raise anything from page 2 of the minutes. Having done so, he moved on to page 3, and noted that there was a legal opinion from the Parliamentary Legal Advisers, that related to paragraph (b). Basically, this said that because Mr Shivambu was a member of this Committee, in the case where the Committee might have to deal with anything that directly affected Mr Shivambu’s position, he would not be permitted to sit in consideration of that issue. Furthermore, the opinion stated that if the Committee was dealing with charges against any other MP that were substantially similar to those that Mr Shivambu himself was facing, he should not sit on those either. The legal opinion concluded that there were no insurmountable obstacles to the Committee being able to act freely and fairly, and that the procedures must be substantially fair.

Mr Mdakane asked if the legal advisors who had prepared the opinion could speak to it, as it was difficult for those who were not lawyers to grasp the finer legal points.

The Chairperson agreed and asked the Parliamentary Legal Advisers to take Members through the opinion.

Adv Mukesh Vassen, Parliamentary Legal Adviser, said that he had been asked to consider three points. The first was whether an MP charged with contempt could sit on the Committee ruling on the matter, to consider allegations against himself. The second was whether he would be able to sit when the Committee was dealing with similar charges against other MPs. The third point related to whether there was anything

He pointed out that section 12(3) of the Powers and Privileges of Parliament Act (the Act) required that any body dealing with the matter must act reasonable and in a procedurally fair manner. Section 57(2)(b) of the Constitution said that the Rules of Parliament must provide for participation in the Ethics Committee of minority parties, consistent with democracy, and the Rules on representation of minority parties mirrored this.

There was no specific Rule that dealt with a situation where a Member of the Powers and Privileges Committee would himself be facing charge, or be asked to determine a situation where other Members were charged with similar facts, and there was similarly nothing to deal with the apparent views or partiality of members of this Committee. However, his opinion had dealt with that point. In accordance with the well-known principle that a person may not be judge over his own cause, he pointed out that no MP should serve on a Committee that was discussing the charges against that particular MP himself. Similarly, when the Committee was considering virtually identical charges against other MPs, which arose from the same incident, and could impact on his own situation, that Member should not sit in consideration of the issues. He pointed out that it had been noted that not all members of the EFF were likely to be charged in relation to the disturbance, and so if only 20 were likely to be charged there was no reason why the five who were not to be charged could not sit as substitute or alternate Committee members.

There had been a suspicion that the hearings of this Committee might be biased if Members had pre-judged the matter. Adv Vassen reiterated that section 12 set out a requirement for reasonable procedural fairness. In other Committees, not only this one, any Committee member who had a direct personal interest in a matter, or in cases where a perception of bias might be created, should recuse themselves. Most political parties had expressed a view on the incident in the House. Unlike other disciplinary committees, this Committee was inherently political, being comprised of MPs. However, the question of bias had been addressed in a well-known Constitutional Court decision that had ruled that it was human nature to hold certain views, but a line had to be drawn between mere predisposition to a certain way of thinking, or attitude, and actual pre-judgment of issues on the other.  Bias could be said to occur if a tribunal shut its mind to submissions, or evidence, but bias could not be assumed from the fact that members serving on that body had certain views on matters. If bias did occur because of the conduct of the tribunal, then its decisions would be subject to review. He had pointed out in paragraph 16 of his opinion that there was no insurmountable obstacle to holding a hearing that was substantially and procedurally fair. Members must be seen to have acted fairly during the hearing and not to have pre-judged the matter.

Mr Nqakula said that the Committee comprised six political parties, who would always be represented on the Committee. If an individual from a party was charged with some alleged misconduct, on that particular matter that specific Member could not sit.

Mr Booi said that the legal opinion was important because it dealt with the nature of the Committee and there were some bigger challenges when it was a member of this Committee who was facing charges. The rules of natural justice would call on the conscience of the Member accused to recuse himself, in any event, from the Committee, and this was an overarching principle so it made little difference that there might not be a specific Rule or section speaking to that point. He noted that it was important to deal with the principles, and not the individual members. This was the first time that such a matter had arisen here. The Constitution set out the rights of MPs.

Mr Booi said that the incident took place in the House, and he believed that it could not be dealt with by one political party. He asked, then, who would be recused from the process, if there had been witnesses. The Speaker’s letter had raised the incident “in the House” and everyone was affected because of that.

Mr Mdakane said that there seemed to be a common understanding on the process.

Mr Shivambu said that he was not sure what the lawyers had said. There was no Rule requiring Members to recuse themselves. The ANC was the body who had complained and who had made remarks in the House about the issues, suggesting that harsh sentences were warranted, so it suggested that they had prejudged the issue – and that in itself was a problem. He said that the question on conflict should apply.

The Chairperson interrupted and said that he thought it would be useful to get a response from the Parliamentary Legal Advisers on the questions so far raised.

Mr Shivambu said that he was not sure why there was a rush to seek a legal opinion on the issues. He pointed out that no charges had been laid against any of the EFF Members, so it was not possible to deliberate upon what they had done that was in violation of any law. He pointed out that this was necessary, that this information must be conveyed to each and every Member against whom any charges would be laid, and the proposals here were premature.

Mr Mncwango said that the legal opinion had been useful. However, the point that Mr Shivambu was raising was also valid. This was an incident where all MPs had been present, and there was a temptation to “jump the gun” and assume that MPs knew what was being dealt with, based on their own observations at the time. However, he was not sure whether all parties must be called upon to make pronouncements, and to that extent the legal advice on impartiality and bias had been useful. He asked, on point 6, whether the composition of this Committee, linked to item 6 on the agenda,  would have any danger of compromising the Committee at a late stage.

The Chairperson stressed that this Committee was not rushing anything. This was a matter arising from the previous meeting, when the Committee requested that legal advice be given to all Committee Members. There were no instructions as such and no objections were raised at the time to getting that legal opinion.

Ms Kilian agreed that it was important to know how to follow process and procedure. At some point, the Committee would need to come to a resolution, but she agreed that at this stage there was not an intention to rush anything when there was a lacuna in the rules or law. She agreed that recourse must be had to the principles of natural justice and that principle should be adopted to guide these proceedings.

Mr Bongo thanked the Legal Advisers for a well-researched document. The Constitutional Court case referred to in the document was important because it dealt with several pertinent issues – and particularly clarified that the mere fact that a person held a view on something did not mean that that person was necessarily biased. There were two important principles to natural justice; the first that a person should not be a judge in the own case, and the other relating to the audi alteram partem rule – the right to be heard. There were five members of the EFF who were not directly involved, and they could replace those directly affected when dealing with the matters.

Mr Shivambu made an inaudible remark.

Mr Nqakula raised a point of order, and said that he was not prepared to “tolerate nonsense”, which was the reason why he had, so many years ago, joined the ANC and Umkhonto we Sizwe, “in order to kill those” who were not prepared to allow others to develop, and he would not tolerate nonsense again, and this Committee must come to a point where it was able to “deal with things like this”. 

Mr Shivambu raised an objection, and several Members started to argue across the table.

The Chairperson noted that any political gymnastics or insults would make it difficult for the Committee to work, and it was not in the interests of participation to quote specific rules only. He said that if nothing was being said that added value to the Committee, then those remarks were not needed. Any utterances seeking to intimidate the Committee in its work were unnecessary. He pleaded with all Members to allow the Committee to proceed properly. When one Member was given the floor to speak, there should not be interjections from others, unless this was a legitimate point of order. Simply interjecting and making remarks would not augur well or assist the process of the Committee. This Committee would be dealing with Honourable Members of the House and it was expected that all Committee members must establish a high level of integrity to ensure that its outcomes were well received. He asked that Mr Bongo be allowed to proceed on what he had been saying.

Mr Shivambu asked what the relevance was of the reference to “killing” and “that was why I joined Umkhonto we Sizwe” and any statements about wanting to kill anyone had no place in this debate.

Mr Nqakula retorted that Mr Shivambu was being rude

Mr Shivambu countered that there was not necessary to speak of killing anyone or violence.

The Chairperson called Members to order. He said he had been asking Members to stop these kinds of exchanges. He wanted Mr Bongo to complete what he had been saying.

Mr Mdakane said that he wanted to make the point that the legal opinion had been concluded.

The Chairperson reminded him that there was still a need to get some responses.

Ms Litchfield-Tshabalala objected, saying her hand had been raised for some time and if other Members were allowed to get responses, she wanted to make her points too.

Mr Mdakane pleaded with Members not to delay the meeting unnecessarily.

Mr Bongo said that he would not say anything more at this point.

Ms Litchfield-Tshabalala reiterated that she wanted to make a point but the Chairperson said that he wanted to hear the responses from the Parliamentary Legal Advisers first.

Adv Vassen said that he would try to synthesise the matters raised. He reminded Members that anything referred to this Committee arose out of allegations of contempt. The Act said that the matter must be dealt with in a manner that was substantially fair. The Committee should have the same proportional representation of Committee Members as there were MPs in Parliament. The situation was rather complicated by the fact that certain of the Committee members would themselves be charged, and by the allegations of bias. He repeated that the proceedings of the body would fall under the Promotion of Administrative Justice Act, and so the rules of natural justice would apply, and a Committee member who was himself accused would have to recuse himself, as he could not be a judge in his own case. He agreed that since there would be certain members of the EFF who were not being charged, they would be able to serve on this Committee, in terms of the Parliamentary Rules.

The issue of bias had been fully addressed in the Constitutional Court case detailed in his opinion. Members of this Committee were representing their political parties, but their impartiality would be viewed not in the light of their membership of parties, but how they dealt with the matters in the appropriate body and time. Members must apply themselves objectively to the facts and situations, in line with the Rules.

The Chairperson reiterated that this legal opinion had been requested to help Members get to grips with the issues.

Ms Litchfield-Tshabalala said she still wanted her questions to be answered. She wanted to raise questions about impartiality. Paragraph 11 of the legal opinion referred to the Rules of the NA. She wondered how anyone could be impartial given that they had witnessed the incident, and pointed out that this was not the same as a judge sitting on a matter who had not witnessed the matters being raised in her or his court. There were other matters also of concern, and the media had shown certain Members – including some sitting on this Committee here today – pushing against the doors and wanting to enter the House.

Mr Bongo raised a point of order, saying that Ms Litchfield Tshabalala was now dealing with the merits of the case, and this session was intended only to clarify the ground-rules. This was a quasi-judicial process, not exactly akin to a full judicial process.

The Chairperson said that the essential issue in front of the Committee was whether MPs cited as being party to the disturbance should be able to sit when the Committee was deciding on the matter. The matters around impartiality and perceptions had been explained, and he agreed that Ms Litchfield-Tshabalala had started to point fingers at individuals.

Ms Litchfield-Tshabalala said that this point was directly related to the question of whether other Members were also impartial. Other Members had been permitted to hear a response to their questions and she wanted a specific response also.

Adv Vassen indicated that, without going into the merits of the matter, he wanted to reiterate that nobody should be allowed to be a judge in their own cause. He could not speak to any comments about Members bursting in to the House. The issue was whether certain conduct was regarded as contempt of the House, and that would have to be decided on the particular facts relating to each Member. If any Member wanted to raise objections to another MP sitting, on a  suspicion of bias, then this issue would be raised and dealt with at that stage.

The Chairperson asked that Members proceed to discuss whether there was anything else to be raised under “Matters Arising” and noted the confirmation of Members that there was nothing further to be discussed in relation to page 3.

Nomination of Initiator
The Chairperson asked that Members move on to the issue of the initiator, the next Agenda item.
He explained that there had been a resolution taken to avoid an MP being involved as initiator, and Members had agreed that it would be preferable to seek those from outside, with the necessary experience and qualifications. The documents had been circulated. The Chairperson asked if anyone had any problem with the three CVs distributed.

Mr Shivambu proposed that none of the CVs and proposals to nominate be accepted (and indicated that he had been given only two, which the Committee staff rectified). He suggested that instead, the Committee should give consideration to appointing retired judge – as this person was likely to have more credibility, rather than a person who was still employed and who might be judged upon the basis of whether or not that person was being considered to get future work from the ANC-led Parliament.

The Chairperson asked if Mr Shivambu was suggesting that the individuals whose names were in front of the Committee were not credible.

Mr Shivambu said that the problem was that their future business and career mobility and interests might be compromised if they were to accept such nominations, and that would not be the case with a retired judge.

The Chairperson asked if Mr Shivambu was suggesting then that these individuals were not seen as credible, and Mr Shivambu confirmed that.

Mr Mdakane said that the Committee should avoid making any suggestion that if person A was not supported, that was seen as an indication that the person was not seen as credible. There might be other reasons not to support someone. He believed that all three people suggested were credible. The second meeting of the Committee had made a proposal, to which all had agreed, that there should be an initiator appointed. He wanted to note that justice delayed could be justice denied. He also thought that the initial suggestions were also credible people. The Committee could not keep wasting time. One of the parties was a Senior Counsel, and he suggested that this person, Adv Potgieter, be appointed as the initiator.

Other ANC Members indicated their agreement.

Mr Shivambu and the DA Members noted, raising their hands, that they did not agree.

Mr Bongo stated that Adv Potgieter was a Senior Counsel with considerable experience, who had probably practised for as long as most judges. He further noted that the initiator would not be taking the decision, as this was to be taken by the Committee.

The Chairperson said that this was engaging with the Parliamentary process and dealing with internal matters.

Ms Lotriet said that the DA wanted to propose that Randall van Voore be appointed as initiator. He had been an Acting Judge in the Labour Court and was eminently qualified.

Mr Mdakane noted that Mr van Voore was proposed in the last meeting, but Members had decided to seek some more names, which was why the other CVs were also put to the Committee. If the DA supported Mr van Voore, the ANC would have no problem in withdrawing the nomination for Adv Potgieter and agreeing with the appointment of Mr van Voore, in line with the Committee’s initial suggestions.

Mr Shivambu said that the EFF was not prepared to support the appointment of Adv Potgieter, pointing out that in the section dealing with his professional background, post 1994, he had noted that he had been involved in cases for government and public entities, and had thus generated part of his income from government.

The Chairperson noted that his professional position must be respected.

Mr Nqakula raised a point of order. Now that the nominator for Mr Potgieter had withdrawn the nomination, it was no longer on the table for debate.

Mr Booi added said that Mr Shivambu had also been a former member of the ANC so it was hardly appropriate for him to make general remarks about others’ backgrounds.

Mr Shivambu said that he also wanted to object to the nomination of Mr van Voore.

Mr Nqakula raised a point of order.

Mr Shivambu objected t o that, saying that points of order were raised by Mr Nqakula every time he tried to speak.

Mr Nqakula made the point that people at meetings had the right to speak, but from a practical point of view, given that the DA and ANC both supported Mr van Voore, the EFF must come up with another alternative nomination, and a vote could be taken.

Mr Shivambu suggested that the Committee should be given further options of the names of retired judges. He sought the protection of the Chairperson against remarks of other Members. 
The Chairperson said that Mr Mdakane had made one nomination, and then commented on the DA’s nomination.

Mr Mdakane reminded Members that after it was decided that no MPs should be the initiator, Mr van Voore’s name remained as the only possibility. However, a suggestion was then made to amplify with other names also, and today, although the ANC had expressed an initial preference for Adv Potgieter, it would have no problems in reverting to Mr van Voore. He believed that this should be concluded, and noted views expressed by the EFF.

Ms Kilian cautioned that the Committee must be careful to minute any objections.

Mr Mncwango suggested that the Committee needed to establish, for now and the future, what deadlock-breaking mechanisms it wanted to use. He had no problem with the individual but did not want to vote.

Mr Mdakane agreed that the Committee tried to work on consensus as far as possible, but when this was merely leading to undue delay, then the democratic voting process should apply. The ANC was open-minded, which was why it was prepared to withdraw the earlier nomination and revert to Mr van Voore, the person suggested previously. He suggested that if there was general support for the name, this should be regarded as sufficient consensus, and the Committee could move forward.

The Chairperson noted that the DA and ANC – and therefore the majority of the Committee - were in support of Mr van Voore’s nomination.

Mr Shivambu noted the objection of his party.

The Chairperson noted that the Committee was now at item 7 on the agenda.  However, seeing that the Committee had delegated the task of initiator to Mr van Voore, it made sense for that initiator also to finalise the notifications, and make sure that they were received by all relevant persons. The Committee could not ask an initiator to do a portion of the work only.

Members agreed that this would be done in line with the Chairperson’s suggestions. Mr van Voore would be asked to deal with the notifications also.

The meeting was adjourned.


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