The hearing was for Mr F Shivambu and 19 other EFF members. 14 members were accused of creating or taking part in a disturbance within the precincts of Parliament while the House was meeting, by shouting and/or banging on tables, and or refusing to obey the Speaker’s instructions in a grossly disorderly manner. 20 members were accused of refusing to leave, alternatively to be removed from, the Chamber, in order for the House to continue with its business. Their refusal to leave the Chamber resulted in the House being adjourned for the day. Six were accused of speaking when not called upon to do so by the presiding officer, and two were charged for failing to resume their seats when the Speaker rose so that she could be heard without interruption.
The Secretary to the National Assembly, in the role of chief witness, verified that the accused had been correctly charged and that the records from the Parliamentary Hansard were in agreement with the video footage. He said the rules and orders of the House derived their authority from the Constitution. In the Constitution, it is stated that Members have freedom of speech in the House. The Constitution grants the House the authority to formulate rules. The rules were meant to regulate business, to ensure that when the House conducts its business, it is done in an orderly fashion. The rules give rise to rulings, conventions and practices which become precedents of Parliament. The rules are important and are meant to ensure that the House performs its constitutional function and that the House is properly regulated when it conducts its business.
When asked if enforcement of Rule 72 would lead to debate in the House being dull -- having no energy – and that what was needed was a healthy exchange infused with some energy so as not to have a sterile environment, the Secretary responded that the House was a forum and it was expected that sometimes debate must be robust, as there were different parties pursuing different policies. The “rules of the game” were made by the House itself in a multi-party forum, and opportunities had always been there to review the rules. The Speaker had the responsibility of applying the rules, and rulings would be made. When a Member was unhappy with a particular ruling, he/she could take up the matter privately with the relevant presiding officer in person, or by letter. The aggrieved Member may refer the case to the Rules Committee for consideration. In the case of serious disagreement, the aggrieved Member may introduce a motion in the House so that the House takes the matter into consideration.
During discussion, Members of the Committee asked whether the Speaker had the right to refuse a “point of order.” Did the Speaker have the right to decide which Member could ask questions first, irrespective of the order in which the names of those wanting to pose questions appeared on her screen? Why had the Speaker ruled out interjections from the EFF, but had allowed an ANC Member to speak? Had new Members had sufficient orientation time to get acquainted with the rules of the House? Why had the sitting been adjourned, considering the President dealt with questions in the House only four times a year? Why had the incidents of August 21 been identified as being “of grave disorder,” given that it the past 20 years, the House had witnessed boxing matches, the chanting of slogans, and outbursts of freedom songs, none of which had been declared “a grave disorder” that warranted a hearing, as in this case? Under what circumstances could the security services enter the House to conduct policing functions?
Charge against Mr F Shivambu
The following charge against Mr Shivambu was read:
It is alleged that you are guilty of conduct constituting contempt of parliament in terms of Section 13 (a) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (the Act) in that as Members of Parliament and during the Question to the President in the National Assembly on 21 August, you contravened Section 7 (e) of the act by creating or taking part in a disturbance within the precincts of Parliament while the House was meeting, inter alia, shouting, and or banging on tables, and or refusing to obey the Speaker’s instructions in a grossly disorderly manner, thereby interfering with or disrupting the proceedings of the House, forcing the Speaker to suspend the proceedings temporarily and ultimately to adjourn the sitting for the day.
This same charge was read for Mr R Ramakatsa, Ms K Litchfield-Tshabalala, Mr G Gardee, Mr Q Ndlozi, Mr J Malema, Ms E Louw, Ms R Mashabela, Mr N Matiase, Ms O Maxon, Ms M Moonsamy, MrJ Mngxitama
Mr Masibulele Xaso, Secretary to the National Assembly, confirmed the charges.
Mr Randall van Voore, of Bowman and Gilfillan Africa Group, asked Mr Xaso why the House was suspended briefly, and a further suspension was imposed.
Mr Xaso said business was suspended at 14h58 in terms of Rule 56, which states that in times of grave disorder, the presiding officer may suspend the meeting or adjourn the meeting to a period stated by him or her. The Speaker had instructed the Members of the EFF to leave, and they did not leave. The Speaker had instructed Members to leave the House, as advised by security. The House was adjourned at 16h17.
Section 13 (a) reads: A Member is guilty of contempt of Parliament if the member contravenes section 7, 8, 10, 19, 21(1) or 26; commits an act mentioned in section 17(1)(a), (b) or (c) or (2)(a), (b), (c), (d) or (e); wilfully fails or refuses to obey any rule, order or resolution of a House or the Houses; or commits an act which in terms of the standing rules, constitutes a contempt of Parliament; or a breach or abuse of parliamentary privilege. Section 7 (e) reads that a person may not, while in Parliament or a House or a committee is meeting, create or take part in any disturbance within the precincts.
The video footage of the events on 21 August was played, with Mr Xaso identifying the accused Members participating in the disturbance.
Mr Van Voore said the conduct was referred to as disorderly, and gravely disorderly, and asked Mr Xaso to comment on that.
Mr Xaso said his understanding had a rational basis. The logic of the situation was that the Speaker had ordered members to leave under Rule 51. The Speaker may order a Member to withdraw from the Chamber because in her discretion, she considered it necessary for Members to vacate the House, having had disregarded seven EFF Members’ points of order. The EFF Members were also on their feet, despite having been ordered to sit down. The rule states that when the Speaker rises, any Member attempting to speak shall resume his or her seat for the Speaker to be heard without interruption. The conduct of the Members therefore fitted the description in rule 51.
Mr Van Voore asked for how long the conduct captured in the Hansard of 21 August 2014 went on.
Mr Xaso replied that he did not capture the duration of the conduct.
Charge against all 20 EFF Members
A charge of contempt of parliament was levelled against the following EFF Members: Mr F Shivambu, Mr R Ramakatsa, Ms K Litchfield-Tshabalala, Mr G Gardee, Mr Q Ndlozi, Mr J Malema, Ms E Louw, Ms R Mashabela, Mr N Matiase, Ms O Maxon, Ms M Moonsamy, MrJ Mngxitama, Mr B Joseph, Ms S Khawula, Ms A Mashobeni, Mr S Mbatha, Mr K Morapela, Ms V Nqweniso,Ms P Ntobongwana and Ms P Sonti
The charge Read: It is alleged that you are guilty of conduct constituting contempt of parliament in terms of Section 13 (a) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (the Act) in that as Members of Parliament and during the Question to the President in the National Assembly on 21 August 2014, you contravened Section 7 (a) of the Act by improperly interfering with or impeding the exercise or performance by the House of its authority or functions by remaining in the Chamber after the sitting of the House had been temporarily suspended by the Speaker so that you could leave, alternatively be removed from, the Chamber, in order for the House to continue with its business for that day. Your refusal to leave the Chamber resulted in the House being adjourned for the day.
The video footage showing the accused remaining in the House
Mr Van Voore asked Mr Xaso to whom the Speaker was referring, when she said “leave the House.”
Mr Xaso said the Speaker could ask Members to leave the House only on the basis of rule 51. It was the Speaker’s determination that Members of the EFF were on their feet or involved in some activity, including banging the desks and speaking on the microphone. The Speaker was trying to manage the situation in the House.
The video footage was played again, with the EFF members seen shouting “Pay Back the Money.” The Speaker was seen saying “We are waiting for the security to take these Members out”.
Mr Xaso, on the instruction of the initiator, identified the 20 Members who were accused of remaining in the House. He said initially the House was suspended for three minutes, and then the Speaker asked Members to take their seats.
Mr Van Voore asked if the EFF Members left the House when the Speaker ordered the Members to leave the house.
Mr Xaso said the Members did not leave the House. The video footage was played.
Mr Xaso was then asked to identify the Members who remained in the House after the suspension, to make sure that those were indeed the 20 people who remained in the house, which he duly did.
As the video was played, the information in the Parliamentary Hansard of 21 August 2014 was checked to make sure that the texts were in agreement with the events on the video.
Mr Van Voore asked Mr Xaso if all questions scheduled to be answered on 21 August had been answered, to which he replied “No.”
Mr Van Voore asked Mr Xaso when those unanswered questions were to be answered
Mr Xaso said in terms of the Rules, the President responds to questions in the House four times a year -- once every quarter -- in accordance with the annual parliamentary programme.
Mr Van Voore asked Mr Xaso if there would be an opportunity for the questions to be answered later this year, including the supplementary questions.
Mr Xaso said he could not pronounce on behalf of the Programme Committee as the rule only says “in accordance with the annual parliamentary programme.”
The video was played, with Mr Xaso being asked to identify Members who appeared on the video. They included Mr Xaso himself, some Members from ANC, COPE, IFP, UDM, Freedom Front Plus, the Deputy Secretary of Parliament, the Speaker of Parliament, the Minister of Telecommunications, the Minister of State Security, the Minister of Defence and Military Veterans, the Minister of Human Settlements, and the Deputy Speaker, among others.
Mr Van Voore asked Mr Xaso which people were involved in the consultations mentioned by Speaker.
He also said there had been a meeting of whips, consultations from the Presidency, and other senior officials at Parliament. The consultations had happened when the House was suspended, and before it was adjourned.
Mr Van Voore said the Speaker had asked the EFF members to leave the House. Did the Members leave the House?
Mr Xaso said according to the record, they did not, nor were they removed from the Chamber for refusing to abide by the Speaker’s instruction.
Mr Van Voore asked if the House was able to continue with its business after the refusal of the EFF Members to leave.
Mr Xaso said the business of that day was questions to the President. There were six questions. Three questions had been handled before the House was adjourned.
Charge against six EFF Members
The following charge was laid against six Members: Mr F Shivambu, Mr R Ramakatsa, Mr G Gardee, Ms K Litchfield-Tshabalala, Mr J Malema,
It is alleged that you are guilty of conduct constituting contempt of parliament in terms of Section 13 (a) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act) in that as Member of Parliament, and during the Question to the President in the National Assembly on 21 August 2014, you wilfully failed and /or refused to obey rule 72 of the Rule of the National Assembly by speaking when you were not called upon to do so by the presiding officer.
Mr Xaso said Rule 72 notes that a Member may speak when called upon to do so by the presiding officer, or at a point of order
Mr Van Voore said the balance of evidence that Mr Xaso would give would be in support of the charge against the six Members for wilfully refusing to obey Rule 72.
The video footage showing the Members speaking without being recognised by the Speaker, was played. The EFF members could be heard saying “when is the President going to pay back the money, we want the money, we want our money, when is the money going to be paid, we are raising a point of order.” Mr Xaso identified the Members speaking, as those charged.
Mr Van Voore asked if the EFF members had been recognised by the Speaker when they spoke, as shown in the video.
Mr Xaso said the record did not show that in respect of Mr Shivambu, Mr Ramakatsa, Mr Gardee, Ms Litchfield-Tshabalala, and Mr Malema,
Mr Van Voore asked what complying with Rule 72 meant.
Mr Xaso said the rules and orders of the House derived their authority from the Constitution. In the Constitution, it is stated that Members have freedom of speech in the House. The Constitution grants the House the authority to formulate rules. The rules were meant to regulate business, to ensure that when the House conducts its business, it is done in an orderly fashion. The rules give rise to rulings, conventions and practices which become precedents of Parliament. The rules are important and are meant to ensure that the House performs its constitutional function and that the House is properly regulated when it conducts its business.
Mr Van Voore asked if enforcement of Rule 72 would lead to debate in the House being dull -- having no energy. What was needed was a healthy exchange infused with some energy so as not to have a sterile environment.
Mr Xaso replied that the House was a forum and it was expected that sometimes debate must be robust, as there were different parties pursuing different policies. The “rules of the game” were made by the House itself in a multi-party forum, and opportunities had always been there to review the rules. The Speaker had the responsibility of applying the rules, and rulings would be made. When a Member was unhappy with a particular ruling, he/she could take up the matter privately with the relevant presiding officer in person, or by letter. The aggrieved Member may refer the case to the Rules Committee for consideration. In the case of serious disagreement, the aggrieved Member may introduce a motion in the House so that the House takes the matter into consideration.
Charge against two EFF Members
The following charge applied only to Mr Shivambu and Mr Ramakatsa:
It is alleged that you are guilty of conduct constituting contempt of parliament in terms of Section 13 (a) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act) in that as Member of Parliament and during the Questions to the President in the National Assembly on 21 August 2014, you wilfully failed and/or refused to obey rule 49 of the Rules of the National Assembly by failing to resume your seat when the Speaker rose while you were speaking or offering to speak, and thereby prevented the Speaker from being heard without interruption.
Rule 49 says that whenever the presiding officer rises during a debate, any Member speaking or offering to speak shall resume his or her seat, and the presiding officer shall be heard without interruption.
The video footage was played showing the two Members failing to resume their seats, with Mr Ramakatsa heard saying “Can we please be provided with answers, not hiding behind Parliament” with Mr Shivambu heard saying “There is a question, when is he going to pay back the money?”
Mr Van Voore asked Mr Xaso if what was shown in the video constituted an infringement.
Mr Xaso said whenever a presiding officer addressed the House/Committee, any Member speaking or intending to speak must resume his seat. The presiding officer must then be heard without interruption.
This closed the evidence
Dr A Lotriet (DA) asked if the Speaker had the right to refuse a point of order.
Mr Xaso said Rule 72 says a Member may not speak unless recognised by the chairperson and generally, the Speaker must respond to points of order. If the Speaker has previously ruled on a point of order, it will be up to her determination to refuse another point of order. There are various interventions named “points of order”, and it is at the presiding officer’s discretion to rule on the point of order.
Mr M Filtane (UDM) said the video footage showed leaders of parties in discussion, and Ministers and the Sergeant at Arms talking to Mr Malema and Mr Shivambu. He asked if Mr Xaso was aware of what was discussed.
Mr Xaso replied he did not know what was discussed in the interactions.
Dr Lotriet wanted to know which points of clarity the Members should engage with the witness, in terms of the evidence which had been led.
Mr M Booi (ANC) said it was imperative for Members to seek outside legal opinion on what exactly they should engage on, so as not to put the witness in a compromising position.
Mr A Matlhoko (EFF) said Members were dealing with statements from a witness who presented before the Committee. He saw no need for legal advice, as Members were in a hearing of public interest. Any issue of public interest must be discussed in this forum. The issue of going outside was illegal, because this was a caucus
Mr Booi said Mr Matlhoko was talking as if Members had not agreed from the beginning on how they were going to handle the process. There was nothing wrong in going outside to discuss, and then come back.
Mr Filtane said if Members went out, it was going to make a statement to the public that Members had never clarified the terms guiding the hearing. He supported going outside on the pretext that the Committee was making a statement to the public that it was not ready.
Mr Mdakane said Members must pose questions, and Mr Booi must withdraw the proposal of going outside.
Dr Lotriet asked Mr Xaso if the Speaker can not acknowledge a point of order before a Member speaks.
Mr Xaso replied that the decision rested with the Speaker, but the rule says a Member can speak only when called to do so by the presiding officer or on a point of order. Another rule also says Members must not raise spurious points of order to disrupt another Member speaking. The presiding officer considers that behaviour a breach of the Rules and Guide to Procedures, but generally the presiding officer must take points of order.
Mr M Mncwango (IFP) wanted clarity on what the Speaker meant when she called the Sergeant at Arms to remove Members “that were not serious.”
Mr Xaso replied that in the context of what was happening, the Speaker had instructed some EFF Members to take their seats, and had ruled out points of order. He was not sure what the Speaker had meant, but events leading to that situation were that EFF Members were rising and the Speaker was instructing them to sit down, as evidenced in Hansard and the video footage.
Ms J Kilian (ANC) asked what was meant by “points of order” -- the origin and practice, and how the rule became part of the conventions of Parliament. It seemed as if the Guide to Procedures noted a difference between points of order and procedure and dispute of facts.
Mr Xaso replied the Guide says a point of order, must relate to points of procedure. A valid point of order restricts a Member’s right not to interrupt -- it must relate to practice. Points of order should not be about responding to points or statements by a Member. If it is during question time, points of order must not be used as an extension of questioning opportunities. Points of order should be used in procedure, and not to dispute facts or to make speeches. If it is a debate, there is an opportunity to dispute facts. Points of order were about order in the House, or in a meeting.
Mr Matlhoko said in the events of 21 August, there were interjections by EFF members which the Speaker ruled out, but she allowed Ms Z Dlamini-Dumazana (ANC) to speak. He asked if this was according to procedure.
Mr Xaso replied that the Speaker presides over proceedings of the House. He did not know why Ms Dlamini-Dumazana was recognised.
Mr Filtane said Mr Xaso had been working in Parliament for 20 years and on-board sessions were held at the beginning of the fifth Parliament. He asked if the on-board orientation sessions gave Members the rules, statutes and conventions to guide them sufficiently with their conduct in the precincts of Parliament.
Mr Xaso said orientation sessions were made and the rules guide had been made available to Members, but he could not indicate whether this was sufficient. His office worked with all Members across parties and on a regular basis, Members visit his offices to interact on matters of rules or practices, whether the House was sitting or not. Training was an ongoing exercise. Members were not expected to be experts. He was always available to work with Members.
Mr B Bongo (ANC) appreciated the experience Mr Xaso had in Parliament, and the efforts of the Speaker in trying to protect the integrity of Parliament. He asked Mr Xaso to explain what the Speaker meant when she indicated that she will call “our security” and whether that referred to the police. He asked if the EFF members understood the rules regarding behaviour in the House.
Mr Xaso replied that Hansard had written that she was calling “our security.” and not security services. He refused to venture an opinion on whether the accused Members understood the rules.
Mr Mncwango asked what the Speaker meant when she said she was removing Members who were “not serious” at a time when the said Members were asking a legitimate question to the President at a session meant to do so. He asked if the issue of “not being serious” was an issue that could lead a Member being removed from the House.
Mr Xaso replied that Rule 51 stated that Members may be removed from the House if they disrupt the authority of the presiding officer, or a Member’s conduct was described as grossly disorderly. That is when he/she can be ordered to withdraw from the Chamber. He could not recall an incident when Members were ordered to leave for what they had said. Members can be ordered to withdraw what they say. A Member can only be asked to leave for disregarding the authority of the chair and for deliberate contraventions of the rules. In terms of supplementary questions, the chair decides whether a supplementary question is in order. On the day in question, the Speaker had identified Members who intended to speak, but was interjected. The issue was not about the validity of supplementary questions, but about procedure. It was not about the substance of the statements, but compliance with rules.
Ms M Mothapo (ANC) said Hansard recorded Mr Shivambu saying, “We have that book as well. We know those things there”. He asked what he was referring to in that regard.
Mr Xaso said the context was Ms Dlamini-Dubazana holding the rules book, so he was referring to the rules book as recorded in Hansard.
Mr Booi said this was 20 years of democracy and the rules were changing. He asked if Members had ever visited Mr Xaso’s office notifying him that they were going to disrupt the House, since this was the third incident.
Mr Xaso said he did not know that the House could not conclude the business on that day.
Mr Matlhoko said when the Speaker said she was calling security for the accused Members to leave, the video footage showed police inside the House. Was this security the Speaker was referring to?
Mr Xaso replied that the police are on the premises of Parliament every day.
Mr Filtane said the President was allocated two hours for questions in the House, and this had never been sufficient. There had been two breaks and before the House was adjourned, Members had returned to the House, and then the Speaker had said the sitting was adjourned. Why did she adjourn the House, given that the President came only a few times a year to answer questions?
Mr Xaso said he would not like to make assumptions. Hansard indicated that consultations were done and maybe the outcome was that it was necessary to adjourn the sitting. The House was suspended in the first place because the accused had refused to leave the Chamber.
Ms Kilian asked where the Speaker and presiding officers derived authority and responsibility. Could Members possibly be provided a court ruling on the authority of presiding officers? When a Member signed an oath, did he/she sign an oath to adhere to the rules? She asked what the recourse of a Member was when the reply to their question was not satisfactory.
Mr Xaso said the Speaker was elected by the House in terms of the Constitution. The Speaker of the House is the custodian of the privileges of the House. The Speaker has a responsibility to ensure that privileges of individual and collective Members were protected for the House to conduct its business. The court case between the Speaker and Mr M Lekota (Cope) concerned remarks made in the House. The Member had not withdrawn the remarks and the Deputy Speaker, who was the presiding officer, had ordered the Member to leave the House in terms of Rule 51. The Member had taken the matter to court on whether the Deputy Speaker had acted correctly and over issues of freedom of speech. The judge, in dismissing the case in December 2012, said the Speaker had a duty to maintain order during debates in the National Assembly. To this end, he/she had to apply the applicable Rules and Standing Orders of the National Assembly. The court ruling noted that controlling debates in the National Assembly required particular skills and was best dealt with by presiding officers appointed to do it on a daily basis. Where a Member disregards the authority of the chair, he/she may be ordered to withdraw from the Chamber for the remainder of that day’s sitting. The judge agreed with the submission by the respondents that the refusal to withdraw a remark constituted a disregard of the authority of the Speaker. The oath speaks for itself about upholding the law and the Constitution. When Members were unhappy, there was time for motions and statements, with statements directed mainly towards Ministers.
Mr Bongo asked for clarity on Rules 52 and 53 -- that the Speaker must name a person to leave the chamber.
Mr Xaso replied that the notion of naming a Member was in terms of this rule. The naming of a Member is a procedure followed in Parliament. Rule 52 is applicable when an order to withdraw from the Chamber is inadequate; this rule empowers the Speaker to leave. Rule 54 says that for the first transgression, suspension should be for five days, a subsequent transgression, ten days, and the third time, 20 days. If it was another presiding officer, not the Speaker, and the order to withdraw was inadequate, the presiding officer named the Member of that constituency. The Speaker was the one with power to suspend a person immediately. Other presiding officers must report the matter to the Speaker. Rule 51 says a member ordered to withdraw/named must withdraw immediately from the Chamber. The Speaker, after consultation with the presiding officer, may take such action as he/she deems necessary. When a Member is named in the British House of Commons it is a severe form of sanction, as it is followed by a motion of the suspension of that Member.
Mr Mncwango said the accused Members had been Members for not more than five months. People like him, who had been in Parliament for more than 20 years, were still not experts on the rules, as it was always a learning curve. Every session starts with the orientation of Members, whether new or seasoned. Was five months adequate for Members to master the rules? Why did the Speaker not name the Members to withdraw from the House, given that the EFF was represented by only 25 Members, who sit together in the House? Who was she referring to when she said leave the House? In the history of South Africa’s Parliament, he had been the first Member to be ordered to leave the House by the Speaker, and the Speaker had named him by his name and he had fully understood he was the one being referred to. In this case, there were 25 members seeking the Speaker’s attention and the Speaker’s response had been “leave the House.” Who should leave the House -- 20 or 25 of the EFF? At one time, the Speaker referred to the EFF Members as anarchists. Would that be considered parliamentary decorum for the Speaker to say that? What had led the Speaker to identify the 21 August incidents as being “of grave disorder”? In the past 20 years, the House had witnessed the chanting of slogans, outbursts of freedom songs, but these were never declared “a grave disorder” that warranted some hearings. It had even witnessed a “boxing match.” Why suddenly “a grave disorder” at that particular moment?
Mr Xaso replied that the “boxing match” had happened after the adjournment of the House. Even though the House was adjourned, because of the seriousness of the matter on the image of Parliament, it was brought back into the House and sanctions were imposed. The Members had apologised in terms of the minutes. One Member was suspended for a day and the other for five days. In September 1998, a group of young people in the gallery had made the Speaker make a determination that it was of great disorder, and the House was suspended. He had not heard the remarks on anarchists. At the point when the Speaker suspended proceedings, ten Members were on their feet, some addressing the chair with a microphone, or on their own. There would always be a debate as to what a Speaker should call a “grave disorder.” The court judgement said the presiding officer had duty to preside over proceedings and it is they who were best placed to make the determination on what should happen to guide events. In deciding whether an action was unparliamentary, the guide says the chair should take into account the tone, manner, the intention of the Member, the person to whom a remark is directed, the degree of provocation, and whether the remark created disorder in the chamber and the context in which a remark is made. On 21 August, the Speaker applied Rule 51, as there were Members on their feet, some addressing the Speaker, the Speaker addressing the House, and it appeared that the Speaker could not be heard without interruption, in terms of rule 49. Four and half months were not enough for mastering of the rules – perhaps just aworking knowledge of the rules. He still listens to people, as he is not an expert on rules. There was continuous training of Members to master the rules. The Speaker did not name the persons concerned, because there were many Members on their feet. He knew there were incidents where songs were chanted, but could not recall the extent to which they interfered with the business of the House.
Mr Mdakane asked the about the importance of whips and leaders of parties in the smooth running of the House, and Parliament in general. He could not find a rule which prescribed the format in which the President answered questions and to what extent a Member had to be satisfied with the answer.
Mr Xaso said the Guide to procedures says whips are political party functionaries. A whip is a Member designated by his/her party to assist in the smooth running of the party and the House. The role of whips was to organise party business and more generally raise points of order in the House. They sit on many Committees, such as the inter-party forum, to ensure cooperation, and sit on the Rules and Programme Committees. Whips provide guidance and leadership and other functions. He did not know how a party conducts its functions internally. The rules deal with procedures and the format of questions. The presiding officer cannot pronounce on the correctness of statements made in the House by Ministers or other parties. Presiding officers cannot dictate the nature of replies that are given to the House. Some of these issues may be referred to the Programmes Committee on whether they should be guidelines. Whips were office bearers who were consulted on any changes to the business of the Chamber, and not the other Members -- not even Chairpersons of Committees.
Mr Filtane asked how often Parliament conducts technical audits on speaking equipment in Parliament and whether this was followed by issuing a certificate of competence and if not. why not. He asked if the Speaker had checked the equipment after Mr Malema had vociferously protested that he had pressed the “to talk button”. Sometimes Members complained they were not being recognised. If Members press at the same time, how does the equipment arrange who comes first -- and how many can it take in a second? He asked were if the rules were reviewed as a matter of procedure by the rules committee and what made Parliament decide that the rules need to be changed, taking into account common law, the statutes and decided cases. It had become a common practice in South Africa that government only responded if people protested, rather than when people were engaging nicely.
Mr Xaso replied the rules were currently under review by a multi-party forum headed by Mr Mdakane. Rules had been revised piecemeal. When the court ruled on the vote of no confidence for the president, a new rule 102 was added, and in the Ambrosini case, the rules were reviewed. When there were pertinent cases from parties, the rules were reviewed. Such cases were first raised at the chief whips forum. The chief whips forum was due to talk about the application of the rules in the Chamber. The Programme Committee was due to talk about motions without notice. There was a regular review of rules, if necessary. Before every sitting in the House, there was basic checking of equipment in the House, especially the” to talk button”. However, not every desk was checked. On the day in question, the Member’s name appeared later on the list. He did not have information on certificates of compliance. The system in the House was new, having been upgraded shortly after the adjournment for the elections. The IT department always indicated that equipment in the House was ready.
Mr Booi had been a member for 20 years, and all incidents had taken place in his presence but never had he heard “we will never leave here until you answer the question” coming from the whip of a party. He asked if that required a certain level of education or a lack of understanding of the rules. The Deputy President had suffered when Members had seen the gesture of a finger to him from Mr Shivambu.
Mr Xaso may not able to recall when issues were referred to the Speaker. There were private rulings made, where a Member would raise something with the Speaker. If a Member was aggrieved, the Speaker would deal with the matter or refer it to appropriate structures. There was recourse and when there was no agreement, a motion could be raised in House. The first point of call was to approach the presiding officer concerned. There had been instances where temperatures between Members could rise in the House, with Members inviting each other outside, but some of these events did not have a collective impact on the business of the House.
Mr Matlhoko asked Mr Xaso to clarify “a robust debate” in relation to what happened on 21 August. In most replies, Mr Xaso had indicated that in his understanding, with some of the statements presented as evidence, he would not have been able to respond to them -- for instance, what the Speaker meant when she said she was calling security. The only person to explain such statements was the Speaker herself, since these were not his own statements. He asked how many cameras were in operation in the House and whether they covered the whole House at any given time.
Mr Xaso said “robust” meant that debates can be heated and rules complied with at the same time, with Members complying with the Speake’rs directives. It gets very exciting when debates get robust. He had explained what was recorded in Hansard and the video footage, and that was the furthest he could go, as he could only base his response on records. There were adequate cameras in the House, though he was not sure of their numbers. From his interaction with the IT department, he had been assured that the cameras were ready. He was the Secretary to the House, which he took as a privilege, so when he says “my understanding” it was dependent on the logic of the situation, the power that the Speaker has, and the statutes, power and privileges of the House. He was not qualified to talk on who else must be called, as he was just a witness.
Ms Kilian asked if any EFF Member had ever visited his offices following the orientation sessions for the comprehension of the rules. Had any new parties during the 20 years of democracy taken the initiative to have their members trained on parliamentary rules? What was the expectation of Members conduct in the decorum of the House? She asked who was ultimately responsible for the security of everybody in Parliament, and where that person derived that authority from.
Mr Xaso said the majority of Members attended the on-board orientation session. He could not recall conducting any special training for a particular party. However, parties that needed training could approach his office and officers could be sent to parties to talk to them about the rules. His office was for Members of all parties where they could come asking on matters of procedure, but not necessarily in a structured format. The underlying principle, according to the Guide in the House, was to show respect in the House; conduct should not give rise to disruption; Members should be seated; they were required to bow to the Chair; not stand in the passage; not to interrupt a Member; an interjection must not be disruptive; a Member should avoid conducting a dialogue; and the volume of interjections must not disruptive and not used to ask questions. Security services include the police, defence and intelligence, established in terms of the Constitution. Section 4 of the Privileges Act, Chapter 4, says members of the security services may enter the House for the purpose of conducting any policing functions with the authority of the Speaker and Chairperson. When there is immediate danger or threat to the safety of any person, members of the security services may enter without obtaining permission, and it must be reported to the Speaker and the Chairperson.
Mr Filtane asked if the Speaker had done a follow-up on the equipment in the House after Mr Malema had been agitated that he was positioned in sixth place, contending that he had pressed as soon as the opportunity to speak had presented itself.
Mr Xaso said when a Member pressed the “to talk button”, his/her name appeared on the screen in front of the Speaker. The system was mainly used for questions and first reading debates on bills. When the presiding officer moved to the next question, the name was cleared. The system had not been questioned before. It had not been a point where the role of the Speaker had been questioned. Members were free to come and verify if their names appeared on the list. The Speaker did not examine the equipment on 21 August. Members were urged to report defective equipment.
Dr Lotriet said asked if the Speaker had the right to decide which names to call first, and not necessarily as they appeared on the screen. Mr Xaso had identified 20 Members of the EFF in the video footage -- were there only 20 Members, and were the others were in contempt of Parliament by not leaving the House?
Mr Xaso said the Speaker had discretion, even when Members used to raise their hands. The Speaker was guided by discretion on the names appearing on the screen. However, in certain instances, names of Members from the same political parties appeared first and where possible, he/she could use his/her own discretion to mix names from different political parties, rather than following the list. He had not just assumed who the accused Members were, but had identified them person by person. There were other EFF members in the House, but they did not appear on the video footage. On whether they were in contempt of Parliament, it was for the Committee to decide.
Mr Bongo said it was recorded in Hansard that Mr Shivambu said he knew what was in the rules book. He asked if Mr Xaso agreed with him on whether the accused Members understood the rules and could not plead that they did not understand the rules.
Mr Matlhoko said this was a leading question which should not be put to the witness.
The Chairperson said the evidence the Committee was dealing with was based on Hansard and the video footage.
Mr Mncwango said he also had a problem with the formulation of the question, as Mr Bongo was asking a witness to agree with him, and this was problematic.
Mr Booi said it was not correct for Mr Mncwango to comment, as he had been given the floor to narrate his stories without interference.
The Chairperson said Members had been behaving well since Tuesday, and it was imperative that they leave the “gymnastics” or adjourn if there were tired.
Mr Bongo said he was also a lawyer and knew how to ask questions. He asked if the Speaker had taken the appropriate route by adjourning the House in terms of rule 45.
Mr Xaso said from Hansard, it was clear. He refused to venture an opinion as to whether he was referring to the rules. He had no reason to believe that the Speaker had taken the wrong decision to adjourn the House.
Mr Mncwango said the core function of Parliament was, among other things, to hold the executive to account. Part of the instrument to hold the executive to account was the questions asked to Members of the executive. This was married to the right of Members to freedom of speech and debate. He asked which power allowed the presiding officer to curtail the right of freedom of speech and free and fair debate. He asked if there were checks against the power of presiding officers to abuse their powers, thereby curtailing the exercise of the constitutional mandate by Members to hold the executive accountable. In Hansard, numerous instances where points of order were ignored by the Speaker were noted. Members should not forget they were dealing with a case under a cloud which had not been dealt with.
Mr Mdakane said it appeared as if Members were becoming unfair to Mr Xaso by making him answer broader political questions.
Mr Matlhoko said the Committee had clearly lost direction, as the people who were supposed to judge the evidence were calling each other to points of order.
Mr Xaso said section 57 of the Constitution stated that the National Assembly may detail its own internal arrangements of proceedings and procedures, and make rules and orders concerning its business. In the event that Members were of the view that the rules were inadequate, it was within their power to review such processes. Members were urged to utilise the current review process under way. The chief whips forum was another forum to raise their issues. Members had recourse if they had difficulty with the principle of a ruling by the rules committee, and it could be dealt with as a matter of urgency. There were platforms, but they had never been used fully. The Constitution granted freedom of speech in the National Assembly, subject to section 58 (1) (a) of the Constitution.
Mr Matlhoko asked who had compiled the charges, and why there were inconsistencies in the application of the rules on charges 7, 3 and 1. He asked if Mr Xaso was affiliated to any political party.
The Chairperson reminded the Committee that Mr Xaso had been called as a witness, and could not be asked who had compiled the charges.
Mr Matlhoko said parliamentary records showed that 25 members of the EFF had attended the House, and asked why only 20 had been charged.
Mr Xaso invited Mr Matlhoko to conduct research on his political affiliation. The Speaker had referred 20 names, whom he had identified in the video footage, to the Committee.
Mr Filtane asked what happened after a Member had spoken -- whether the name gets deleted from the screen of the Speaker, or if it gets saved somewhere. When the Speaker chooses which Member may ask questions, did she consider the spread of names of political parties, or the fact that the main question had been asked by Members from a particular political party, which gave a moral obligation to prioritise that political party
Mr Xaso said the system did not save the names, but he would verify from the IT department if the information gets stored somewhere. The dictionary meaning of “discretion” was the freedom to decide what happens in a particular situation. The party that would have asked the main question must get preference in asking supplementary questions. Since the house was a multi-party forum, the presiding officer may wish to spread the names.
Ms Kilian asked Mr Xaso to explain the referral of 20 names by the Speaker, and whether the Committee had the power to expand the names, or if this was the prerogative of the Speaker.
Mr Xaso replied that the rule says that the Committee must deal with any issue referred to it by the Speaker and the Committee was busy with the matter. He was not in a position to respond as to whether the Committee should expand the names.
Ms Mothapo asked Mr Xaso to elaborate on rule 49 and 72 in relation to the incidents that took place on 21 August 2014.
Mr Xaso said rule 49 says whenever a presiding officer rises, any Member intending to speak, or speaking, shall resume his seat and the Speaker must be heard without interruption. When the presiding officer addresses the House, this rule is applicable. Rule 72 says a Member can speak only when called upon to do so by the presiding officer, or on a point of order. That should have been the case on 21 August.
Mr Mdakane said asked how Mr Xaso understood the importance of appropriate conduct by Members in the House. The Committee had exhausted so much and what was left was to persuade each other on some issues, otherwise Members would raise answered questions and would end up raising political questions. He thought that the name “Honourable Members of Parliament” meant a certain conduct in the House.
Mr Matlhoko asked why the Speaker had asked the President to answer the question. This meant that the President had not adequately answered the question.
Mr Xaso said the Speaker may have been confused by interventions from various Members, and could not recall that the President had answered.
Mr Mncwango said Hansard recorded the Speaker repeatedly saying, “I will throw you out of the House,” which means that there was a lot of agitation from the Speaker. Mr Xaso was free not to answer this question and chose not to answer.
The Chairman thanked Mr Xaso for agreeing to be a witness.
The meeting was adjourned.
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