Parliament vs Hon F Shivambu and 19 others

Powers and Privileges of Parliament

15 October 2014
Chairperson: Mr B Mashile (ANC)
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Meeting Summary

The opposition political parties namely DA, UDM, IFP and EFF wrote a letter to the Chairperson expressing their concern on the way in which the hearing was proceeding. Matters raised in the letter include taking into consideration the submission by Mr Malema, the need for the Committee to call witnesses, the way the charges were drawn which had to be considered before the hearing could proceed. Legal advice from parliamentary legal advisors was sought. However, this served only to add a further rift as the Committee asking advice from officials involved in drawing up the charges made the legal advisors both player and referee. The meeting was suspended twice, first for an hour and latter for four and half hours for Members of the majority party and the opposition to resolve their differences, but in vain. The EFF members insisted that the Committee must seek independent legal advice and not from parliamentary officials involved in drawing up the charges. In short, much of the day was spent with the majority party caucusing on its own and the opposition on their own. The initiator spent the whole day without making any input.

Meeting report

The Chairperson said that what remained was to receive heads of arguments from appointed initiator, Mr Randall van Voore. He pointed out that Members should be quiet during the hearing process except at the end of cross questions, when they are permitted to ask clarity-seeking questions. Members will then deliberate the evidence based on the report from the initiator. The proposal was that Members should not "change shape" and move in and out of situations that require different conduct. The Committee needs to retreat to a committee mode after being panellists in a hearing mode. That was the procedure that needed to be followed. They must not mix these different modes.

Mr M Filtane (UDM) said issues raised in the letter from the opposition political parties, not only relate to matters of procedure, but also to witnesses.

Mr M Booi (ANC) did not have a sense of what the Chairperson was talking about and he was unaware of the contents of the letter.

Mr M Filtane (UDM) was happy that committee members know the matters raised in the letter and why the opposition parties were insisting on these.

Mr M Mdakane (ANC) said Members were in a hearing until they discuss their report to the National Assembly. They were not in a hearing and a parliamentary committee simultaneously. He supported that they retreat into committee mode and discuss the contents of the letter then pursue whatever need to be pursued.

Mr A Matlhoko (EFF) did not want a situation where Members were in a hearing when it suits them and in a committee when it suits them. Last week, issue were raised about the Deputy President which is not related to this hearing. Points of orders were called because Members were bringing up issues outside the mandate of this Committee. He was suspicious whether this was a hearing or a committee or alternatively both. He supported the proposal that Members be given an opportunity to peruse the letter.

Dr A Lotriet (DA) said Members were in a committee since the initiator had not yet arrived. References were made to the Rules of National Assembly in the previous hearing. Therefore, one needed to understand which parliamentary rules govern a hearing and which govern a committee

Ms J Kilian (ANC) said the Chairperson must decide when to adjourn the hearing mode. The Rules of Parliament as well as disciplinary hearing practices dictate how committees of this nature operate. Members can do a Google search and find a guide to disciplinary hearings.

Mr Matlhoko, on a point of order, said if it were a hearing, all reference documents were put in a bundle and provided. “We are not going to be told by Hon Kilian to google, google what?”. Any information pertaining to the hearing must be made available and not require one to google.

The Chairperson said the point of order was not sustained and it was important for Members to listen to each other so that they respond appropriately to what had been said.

Ms Kilian said that part of the hearing was that judges hear evidence from both sides and then deliberate behind closed doors. Any matter of concern to the panellists, needs to be explained. She recommended that the committee meeting be adjourned.

The Chairperson said what was discussed behind closed doors had a record of agreement. He pleaded with Members not to conflate the hearing with matters that relate to themselves as panellists. When Members were sitting in the panel, it was one panel with not even a reflection of there being different political parties. The panel was like a judge presiding in a court case.  Committee meetings were conducted using different rules. The hearing and the committee need to be separated. He proposed that the meeting be suspended and Members retreat to the backroom and discuss matters of concern.

Mr Matlhoko was one of the authors of the letter that was addressed to the Chairperson and he said that the other ANC members should be given an opportunity to read the letter.

The meeting was suspended for an hour for Members to deliberate on what was in the letter as well as to seek legal opinion on how to proceed.

The Chairperson resumed the hearing for the purposes of speaking to the letter he had received from opposition political parties. During the suspension, members had engaged each other and managed to persuade each other that the hearing continue. It was important to ask the parliamentary legal advisors to take them through the letter.

Adv Frank Jenkins, Senior Parliamentary Legal Advisor, said the first matter raised in the letter was the Committee had not been appraised of nor had considered the individual charges brought against each of the accused and why these charges have been brought in each case. Adv Jenkins said that a bundle of documents had been handed out by the initiator which included all the individual charges. It was important to understand the rules of procedure before this Committee. The crux was that the implementation of the rules of Parliament in the National Assembly was the responsibility of the Speaker.  The Speaker had referred the case to this Committee when she felt that the parliamentary rules had not been obeyed. It was therefore expected that the Committee deal it with not in a political manner, but in a quasi-administrative manner. When the legal advisors (from the administration side) started initiating the process, they looked at what the law provides in terms of the rules. Were there was an abuse of the rules, the law guides on how the charges must be drawn. This was the way in which the charges were drawn in an administrative manner and not in a political consultative process. It was based on what the Constitution says in its preamble that every citizen was equally protected by the law and that the Constitution binds society based on law. It was from that angle that the Committee needed to understand what was happening in the hearing, "not that the Committee should choose what charges should be laid". Rather the Committee should hear what the evidence says and then deliberate whether the charges that had been drawn, cannot be proven. The Committee then makes a recommendation to the House and the House will recommend what to do next. In drafting the charges, the administrative side looked at what happened, which rules were breached, did the breach constitute contempt of Parliament, let’s get an initiator to formulate or find evidence to present to this Committee and then the Committee makes a recommendation based on that.

The second issue in the letter was that the Committee has not considered the list of witnesses that the hearing intends to call before the Committee. Adv Jenkins pointed out that the initiator can call witnesses, the accused can deny the charges and call witnesses and then the Committee makes up its mind.

The third issue in the letter was about the refusal of the Committee to deal with the points made in the opening submission or representation of the EFF to the Committee on the opening day of hearing. This letter states that the Committee must take cognisance of these matters raised in the EFF representation before the commencement of proceedings. Parliament's Legal Services was asked for an opinion and that opinion stated that one cannot ignore the EFF representation, one must take it into cognisance. But it does fit into the issue of a defence. It does not answer the charges against the Members, it is not evidence. Why did we say that? It was not done in terms of the proper procedure that must be followed. But if one looks substantively at the document - and often it helps to start from the back of the document - it states that, whatever the outcome, the EFF will not participate in the process. One cannot take this document and state that it is participation when the document itself states that it is not participation. The Power and Privileges Act of Parliament and Provincial Legislatures Act 2004, notes that the process in the Committee must be reasonable and procedurally fair. In his view, it would be procedurally fair to look at all the evidence presented before this Committee, including the EFF document and see what it has to say and if it has something of substance to say . However, he did not think from a legal point of view, the submission has issues that the Committee must first resolve before proceeding. It explains why the EFF decided not to participate in the hearing process. The Committee must look into it and respond to it.

Mr Matlhoko said he was not aware that the legal advisor was also the initiator of the charges. He thought the Chairperson was going to give an impartial legal advisor and whether the advice was fair. The legal advisor cannot be a player and a referee in that he was involved in initiating the charges and was now giving advice to the Committee. The legal advisor was therefore not "advising", he was merely answering. He was only advising to suit himself and therefore did not give legal advice. He was just taking a position.

Dr Lotriet said there were no witnesses in the bundle of documents and charges given to Members and the Committee was only advised that Mr Xaso would be a witness. The rules that guide the hearing process say the Committee and the initiator may call witnesses. The Committee has not decided to call witnesses, neither was it given an opportunity to state whether it wants to call witnesses. It was not just the responsibility of the initiator to call witnesses. On 9 October, Members were prevented from asking the question why only 20 out of 25 EFF Members were being charged. The response had been that the witness must be protected and he does not have to answer that question. The EFF submission, while it may or may not be a defence, has not been looked into whether it had merit or not. She appreciated the legal advice given, but it did not take away the issues raised on the matter. 

Mr Filtane asked if the Committee can call witnesses and at what stage.

Adv Jenkins said section 195 of the Constitution says public administration needs to provide impartial and equitable advice without bias. He took it seriously when somebody indicates that he was not providing impartial advice. The Constitution laid foundation to the type of society which people enjoy based on the law were everybody was equally protected by the law. The Constitution created Parliament based on democratic principles—that democratic institution was given powers to formulate its own rules, procedures and proceedings. It is expected that people working for parliament be impartial. The charges were referred to them by the Speaker that the rules had been breached and the legal advisors highlighted areas in which the rules had been breached which constituted contempt of Parliament. The charges were not drawn against a particular member based on what the law says and the Committee can question if the charges have not been drawn appropriately. A lecturer at Stellenbosch University wrote a book titled In the Defence of Politics, explaining about society moving away from punching each other, to a society that speaks to each other. People cannot speak to each other in South Africa, which is the rainbow nation of the world, if there were no rules that govern how people speak to each other. If the Committee decides to bring an opinion from outside Parliament, it can be done provided it was within its budget.

Mr Gary Rhoda, Parliamentary Legal Advisor, said the rules state the Committee must decide any matter referred to it by the Speaker of Parliament relating to contempt which means that the Committee has no power, but must deal only with the 20 Members referred by the Speaker. The schedule was clear that the Committee, Initiator or the accused can call witnesses. The initiator leads evidence which does not take away from the Committee’s power to call witnesses. The charges were drawn by the initiator in line with the Powers and Privileges Act and the Rules of the National Assembly.

Mr Matlhoko was not convinced about legal advisors from Parliament initiating charges and giving the Committee advice. He called for an independent legal opinion that was not one sided and bumpy. Mr Jenkins was employed by Parliament. The Committee cannot continue without knowing who was going to be the next witness, in relation to what the first witness responded to, before going forward with the hearing.

Mr M Mncwango (IFP) said the legal opinion on the submission by Mr Malema was not clear. He did not agree with the legal opinion that the representation from Mr Malema had nothing to do with the issues at hand especially on the evidence that had been laid out. It must be decided if the Committee was to call further witnesses.

The Chairperson said Adv Jenkins in the previous week had said “the submission by Mr Malema does not constitute defence in terms of item seven which deals with the hearing hence it is headed as such. In other words, the submission was not evidence given under oath that may be questioned by Members of the Committee against Members charged, whether directly or indirectly by legal representatives or the initiator”.

Adv Jenkins agreed that if Members so wished they could raise points that they wanted clarity on with the issues raised in the submission by Mr Malema on behalf of the EFF. He suggested that the initiator summarises it and then the Committee can look at this. Issues raised by Mr Malema can be dealt with in the Committee, but the document as such was not evidence before the Committee. Nothing stops Members from discussing the issues raised by Mr Malema.

On calling witnesses, Mr Rhoda said that the Schedule to the Rules said that the Committee, the Initiator and the accused may call witnesses. Whether the Committee decides to call more witnesses, who to call, he cannot suggest as it was for the Committee to decide. The witness was not obliged to attend the inquiry. The submission by Mr Malema can be disposed of for the following reason: It wrote that the Committee must stop the inquiry. Mr Rhoda noted that the Committee was obliged to consider the matter referred to it by the Speaker. The Committee was neither empowered to withdraw the charges nor was the Committee empowered to call the Speaker and caution her, as suggested by Mr Malema. The Speaker is the custodian of the Rules of Parliament. For the purposes of the inquiry, the submission was not evidence.

Dr Lotriet said the issue of witnesses was quite clear that the Committee needs to discuss it. She asked if the initiator drew the charges in assistance from legal of Parliament and whether the accused were identified by the Speaker. She asked when the submission by Mr Malema was to be discussed before proceeding with the hearing.

Adv Jenkins said the Speaker did not draw the charges, but referred the matter of a breach of rules. The charges were drawn looking at what the law says and what had transpired on 21 August and the evidence out there to support the charges. The charges were referred by the Speaker to the Committee to make recommendations.

The Chairperson said there were a lot of logistical arrangements that need to be done on a daily basis for the hearing.

Mr Matlhoko asked who were the complainant and the respondent in the hearing. He insisted that Parliament’s legal advice may be biased and proposed that the Committee call an independent legal advisor. The Constitution can say, you must or you may handle yourself in this manner, but there was a human element which had been displayed even by other Members in the Committee. Members must further consult outside legal advice, outside of Parliament; seek legal advice as political parties. The Committee did not have any time to deliberate the charges—as Members saw the charges only on the first day at the start of the hearing which means that the Committee did not have any time to consider what was proposed by the initiator. Therefore the rules were not followed as to the charges.

Mr Mdakane thought that the legal advice had done its job and it was for the panel to have a discussion on the matter. The real purpose was for legal to explain procedural issues. The best way was to adjourn and go to the backroom to discuss.

The Chairperson said the Schedule to the Rules says the Committee can employ a Member who was not a Member to the Committee or a person who was dully qualified to act as an initiator. The Committee then appointed Mr Randall van Voore as a person in private practice with necessary qualifications and expertise. He avoided procedural injustice by leaving the initiator to draw up the charges who has no direct interest to the matter. He was advised to avoid procedural unfairness and wrong perception not to table the charge sheet before the Committee for reflection, discussion and approval as the members dealing with the charges will be the same members presiding over the matter during the hearing. This will have constituted serious procedural unfairness which had been avoided to date.

Mr Mncwango said Members had to agree on principle that it was going to call witnesses before going to the backroom.

The Chairperson said the legal advisors had given sufficient explanation on witnesses.

Mr Filtane was comfortable to confirm that the legal advisor had said the Committee can call witnesses.

Mr Booi said the Committee was for all representatives. If the issues members had raised had been discussed, it was for the Committee and not the legal advisors to agree on the matter. He appealed for Members to work together and engage each other to resolve the issues raised.

The meeting was suspended initially for one and half hours at 11: 40 and then four and half hours for Members to "find each other". Members continued caucusing during this period.

The meeting was scheduled to end at 17: 00. [The PMG monitor left at 16: 25]

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