Parliament of Republic of South Africa vs Hon F Shivambu and 19 other - Summary of evidence by Mr van Voore

Meeting report

Introduction by the Chairperson
The Chairperson welcomed Members to the hearing. This was the day in which Members had set aside to receive a report from the initiator.

Mr M Filtane (UDM) asked if receiving the report from the initiator was the only agenda of the day.

The Chairperson said the Committee was going to receive a report and if Members wished to continue with discussion and deliberations, they would raise that particular issue.

Mr M Booi (ANC) said the Committee agreed that it was going to receive a report from the initiator and that was the only programme for the day.

Mr D Twala (EFF) was perturbed that the initiator was going to present evidence before certain witnesses the Committee had agreed to call arrived at an informed view of the happenings on the day in question. It was extremely illegal to proceed with the hearing before the witnesses were called. If the Committee were to arrive at an informed conclusion, it was important to call all witnesses including the Speaker of the House who was the complainant.

The Chairperson said the Committee agreed on whom they need to call as witnesses and Mr Twala was not part of that meeting. That kind of debate undermined the decision the Committee had taken.

Mr Booi said the ANC congress noted that consistency helped a lot. The Committee agreed on the witnesses, that was not a problem of the Committee but a problem of the EFF.

Dr A Lotriet said Mr Twala was correct that the Committee agreed to disagree on the witnesses to be called.

Mr Filtane said the Committee agreed to call the Minister of State Security and the Minister of Telecommunications. The Committee had not yet deliberated on whether they were in the country or they were still out of the country. The Committee was waiting to hear from the Chairperson as to when they were coming. It became awkward for the Chairperson to voluntarily announce that the Committee was going to hear the evidence from the initiator without pronouncing whether or not when the ministers were going to testify before the Committee.

The Chairperson said he was not sure what to say to the Committee, but the question Mr Filtane had raised was answered last week. Maybe it was a technological error that gadgets were taking much of the time that when certain issues were communicated, Members were busy on their electronics. Members had agreed that everything would not be held up because the Ministers were out of the country. The Ministers were going to be called should they arrive during the deliberations. The Committee was going to receive a report from the initiator. If Members had other issues to raise, they must first receive the report and then deliberate. It would be unfair for the Committee to undermine its decisions.

Mr Filtane asked when the Committee was going to receive a report of the day the Ministers were going to testify. The Committee was told that a report would be received from the initiator.

The Chairperson said after receiving the report Members would engage in discussion.

Mr Twala said the Committee was eager to come to finality and asked how the Committee was going to arrive at a conclusion without having heard the evidence from the Ministers. The Ministers were named because they had a role to play in enlightening the Committee on the proceedings of the day.

The Chairperson insisted that the Committee reached a decision to receive the report from the initiator.

Mr Twala objected, the Committee could not arrive at a just conclusion without all the witnesses having testified.

Mr Booi said Mr Twala was not present when the Committee agreed that it was going to receive the report.

The Chairperson said the Committee would receive a report and deliberate any matters of confusion later. There was no need to engage in further gymnastics.

Mr Twala insisted that he wanted to put something on record before the Committee could proceed. He insisted that it was unprocedural for the Committee to receive a report before the other named witnesses testified.

The Chairperson said that if Mr Twala had anything to say, it was to be said after receiving the report from the initiator. The Chairperson ruled that the meeting would receive a report from the initiator. Mr Twala walked out in protest

Principal submission by Mr Randal van Voore in relation to Members facing allegations of contempt of Parliament
Mr van Voore said he would be guided by an excerpt from Charles Dickens’ Hard Times: “teach me nothing except the facts”. What mattered in a case like this were the facts. Some of the facts might be inconvenient, pointing one. If he was to leave something out, he would be alleged to be manipulating evidence. It was in marshalling those facts that the Committee would arrive at a fair, reasonable, rational and sensible outcome. It might have been thought that the facts were sensational, but this only applied to a few of the facts.  The Committee had sat through the hearing; had seen the video footage, and the facts were important. It was those facts that derived conclusions. The facts were rather straightforward. The Committee would be guided by the Rules and the Guide to Procedures, as dealt extensively by Mr Xaso. The rules of debate in other jurisdictions such as the House of Commons of New South Wales say “courtesy and self-discipline are vital ingredients of parliamentary discourse. It is no more than elementary good manners for those who have finished speaking to sit through the next speech. It is only through such standards of behaviour, as enshrined in the conventions of the House, that the traditions of robust debate in a democratic assembly are accepted and upheld”. It might be thought that courtesy; robust debate and self-discipline were irreconcilable. The Committee members must dispel those ideas from their minds.

Mr Filtane said he was becoming uneasy with Mr van Voore’s approach. He was coming up with persuasive language. He thought that the initiator was going to summarise the evidence only.

The Chairperson said it was important that Mr van Voore be given a chance until he finished. Members would agree or disagree with his evidence during deliberations. The Committee would to produce its own report.

Mr Filtane said it sounded like the initiator was a prosecutor and not an evidence leader.

Mr van Voore said the conclusion rested with the Committee. He raised the reference to New South Wales in the context of the evidence from Mr Xaso, who on many occasions referred to the rules of the assembly. The Committee had heard evidence from five witnesses and the Committee engaged with the witnesses until they exhausted their questions or any areas were clarification was needed. The work of the Committee included the video footage and various bundles of documentary evidence.

The charges faced by the Members who were brought before the Committee were very serious. The hearings were scheduled timeously, the affected members confirmed they received the charges and they knew and understood the charges and did not have any objection in the manner in which the charges were put to them. After reading and confirming the charges, the affected members elected not to participate in the hearing.

The evidence was not presented in the way in which the witnesses testified.

It was suggested by the Committee that the equipment might not have been working properly which might have triggered the subsequent events that unfolded in the House. The head of ICT at Parliament Mr Ravi Poliah was called to testify before the Committee. Mr Poliah explained that Parliament had a standard operating procedure and explained how regimes of testing were done on the equipment in the House every Monday and a service report was generated indicating if there was any fault or not. Before every sitting, equipment in the House was also tested. The pre-sitting test was done between 10: 00 to 12:00 hours. The testing regimes resulted in reports being generated and typical reports done on 19, 20. 21, and 26 August were provided to the Committee.  Mr Poliah gave his evidence in a clear, logical and coherent manner. Mr Poliah said on 21 August, a pre-sitting test was done and no malfunctioning was reported. There was no reason for the Committee to disregard the evidence. Mr Poliah was an ICT manager, with a team of 65 members with the assistance of the contractor on site. Even if Members had concerns on the function of the IT infrastructure in the House on the day in question, the evidence before the Committee showed that there was no suggestion that the system was malfunctioning and there could be no suggestion that because the system was not working, it was a contributory factor to the conduct of some Members in the House.

When Mr Malema raised a question to the Speaker as to why his name was placed sixth in asking supplementary questions, the Speaker explained to him and the issue was resolved as captured in the Hansard. There were no facts before the Committee that the equipment of the affected Member was not working and that this might have contributed to a level of frustration. The cameras were not operated in a manner to show malice or any attempt to show some people up relative to others. There were five cameras in the House operated remotely. The camera operators did not receive any extraordinary different mandate to do their work. The Committee had to accept in full the evidence from Mr Poliah on the functioning of ICT infrastructure as installed in the chamber. Even if the request to talk was not working, the question was whether it was relevant to the charges or not.  The affected Members made no such claim.

Sergeant at Arms, Ms Mohlomi, also gave evidence. The Committee was concerned about the nature of her action towards certain Members of the EFF. Ms Mohlomi said she did not rise from her bench when the Speaker initially called upon the Sergeant at Arms because she did not want to be seen as too keen to remove Members. She rose from her bench when the Speaker said Sergeant at Arms; assist in removing Members who were not serious. She attempted to engage with Mr Ndlozi, but when she did not receive a ready response, she proceeded to the leader of EFF, Mr Malema. She told him that the Speaker had spoken, they were ordered to leave the House. Mr Malema made it absolutely clear that the he was not going anywhere. Ms Mohlomi proposed calling security and Mr Malema replied ‘call them’, which was in line with what Mr Shivambu had said, “we are not going anywhere” as captured in the video and Hansard. This was the first time that a Member had refused to leave the House when instructed to do so by the Speaker. The affected Members knew exactly what they were required to do and deliberately and intentionally chose not to obey the Speaker’s instruction. Ms Mohlomi told the Committee that she was not involved in calling the SAPS to enter the House. She also said members of SAPS had an important role to play, especially the dog unit in sweeping the House and guarding the premises so that no one entered the House before the Members did. Ms Mohlomi said she knew whom the Speaker was referring to when she was instructed to remove Members who were not serious. She had some experience of the National Assembly, having previously been Undersecretary to the House. She approached the Members who were acting in a disruptive manner. There was no criminal law standard imposed on the Committee to satisfy itself beyond reasonable doubt. The Committee should not investigate whether every end was relevant or not, the evidence before the Committee was straightforward.

Ms Doris Dlakude, Deputy Chief Whip of the majority party, testified before the Committee. During the second suspension, she convened a meeting of whips in boardroom V16. The whips were upset and were unanimous that Members of the EFF could not hold the House to ransom. The whips recommended that their Members leave the House so that the Members of the EFF could be removed from the House. No one in the meeting of whips suggested that the police be called to remove Members of the EFF. After the meeting, she went to the Speaker to inform her of the decision of the whips, but the Speaker informed her that the House was to reconvene and adjourn. She referred to the events of 21 August as embarrassing. The chief whip of the opposition party also echoed the same sentiments to hers. Ms Dlakude testified that the meeting of whips did not make binding decisions; ultimate decision rested with the Speaker.

Mr John Steenhuisen, Chief Whip of opposition party, confirmed that a meeting of whips took place in the boardroom. He said Members were excited and concerned with what happened. He said there was very little coherence and that the parliamentary security was ready to deal with events that transpired in the chamber. He left the boardroom under the impression that a decision was taken that their Members would move from the chamber for security to exercise its function. If there was going to be any activity around the security removing members of the EFF, they did not want their members to be caught in the way, it was possible that Members could get hurt. He too was confused when he came from the meeting and approached the corridors of the National Assembly and saw Members walking into the chamber. He was approached on two occasions by Mr Jackson Muthembu and asked him what was happening as it was contrary to what they had agreed. Mr Muthembu told him that there was a change of plan and the House was going to reconvene to adjourn. He also said the leader of opposition, Mr Maimane, was opposed to any forcible removal of Members of the EFF by security.. There was genuine acceptance that the rules of Parliament were broken. It was important to obey the rules of Parliament otherwise it would result in unbridled interactions which was not what Parliament was all about. He made a lot of recommendations on how he thought the matter could be dealt with differently.  The Committee must accept the evidence. There was no reason to suggest that the witnesses withheld any information. The Members of the Committee engaged with the witnesses until they exhausted all their questions. The initiator’s job was to suggest, guide and clarify whether or not that evidence tended to be true against the affected Members.

Refusing to take his/her seat
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 refusing to take your seat. This conduct impeded the House from performing its functions by exercising oversight to the Executive by posing questions to the President and for continuing its business for that day.

This charge was laid against Mr F Shivambu, Mr R Ramakatsa, Mr G Gardee, Ms K Litchfield-Tshabalala, and Mr M Ndlozi.

Mr Xaso, the Secretary of Parliament, gave evidence at length in relation to the above charge. He said that he assists and guide all Members of the House. He was present in the House on 21 August 2014. Mr Xaso gave reference to the Hansard and the video with the Speaker instructing the affected Members to take their seats. The affected Members refused to do so. That was not in dispute. Mr Xaso referred to the Hansard that the Speaker explained the rules on two occasions. There was some debate in the Committee that four months might have been insufficient for the affected Members to master the rules. The evidence served before the Committee disputed this claim. The watermark of this evidence was recorded in the Hansard with Mr Shivambu referring to another Member who held the rules book in her hand that “really, we have dealt with the issue of the rules. We have that book as well. We know those things. Could that lady please sit down?”. There can no serious suggestion that the rules were not mastered. Mr Xaso explained that the rules book was distributed in hard copy and was available in electronic format on the Parliament website. He explained that on boarding orientation sessions took place. The Speaker on two occasions explained the process in relation to supplementary questions. Having watched the video, the Speaker was heard on several occasions saying to the affected Members, “take your seat. I have not recognised you”. Another Member who purported to rise on a point of order was told by the Speaker that was not a point of order, take your seat. The factual evidence in relation to the above charge was rather straightforward. The affected Members heard the Speaker instructing to them to take their seats and they chose not to abide with the Speaker’s directive. The facts given their ordinary assessments established that the affected Members were indeed guilty of contempt of Parliament.

Refusing to leave the House when ordered to do so by the Speaker
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 wilfully refused or failed to obey Rule 51 read together with the Rules of the National Assembly in that you failed to withdraw from the House when ordered to do so.

This charge was brought against Mr F Shivambu, Mr R Ramakatsa, Mr G Gardee, Ms K Litchfield-Tshabalala, Mr M Ndlozi and Mr Malema.

The evidence served before the Committee in relation to the above charge was rather straightforward. The evidence was made up of the Hansard, the video footage and the oral evidence from Mr Xaso. Mr Xaso referred to rule Rule 51 of the National Assembly and that the affected Members deliberately contravened the rules or that the affected Members disregarded the authority of the chair that if a Member’s conduct was greatly disorderly, he or she may order the Member to withdraw immediately from the chamber for the remainder of that day’s sitting. Mr Xaso referred to various section of the Hansard with the affected engaging with the Speaker. The affected Members were identified as acting in a manner contrary to section 13 (c) of the Act and rules 51 and rule 53 (1). The evidence in support of this charge was uncontroversial but rather straightforward. Mr Xaso explained that a Member who deliberately contravened the rules or disregarded the authority of the chair or of disorderly conduct may be ordered to leave the chamber. Mr Xaso gave detailed evidence of how the rules operated and also explained the rules in a lengthy engagement with Members. The relevant facts had been established. The application of rule 51 and 53 had been clarified. The evidence served before the Committee established that the Members acted in contravention of Section 13 (c) of the Act and indeed in contravention of rule 51 and 53.

Preventing Mr H Holomisa from speaking
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 Member of Parliament and during the Question to the President in the National Assembly on 21 August 2014, you contravened section 7b of the Act by improperly interfering with the performance of a Member of his or her functions as a Member in the following manner: When the Speaker requested Mr B Holomisa, a Member of Parliament, to pose a question, being a supplementary question to the President, your conduct prevented Mr Holomisa and other Members of Parliament who might have wished to speak or might have wished to ask the President further questions, thereby preventing them from performing one of their functions as Members of Parliament.

This charge was brought against Mr F Shivambu, Mr R Ramakatsa and Ms K Litchfield-Tshabalala

Mr Xaso explained in detail that the Speaker had explained the procedure of the main questions and the supplementary question. The Hansard recorded that the Speaker on a number of occasions attempted to recognise or did recognise Mr Holomisa as being the next person in the queue to ask a supplementary question. That was clear from the Hansard and the video footage. There was little suggestion that the affected Members who faced this charge did not hear the Speaker recognising Mr Holomisa, who expressed disdain and frustration and was heard saying’ Haibo’. It was clear to all what took place. It was his turn to speak. The conduct of the named Members did indeed prevented Mr Holomisa from speaking as the next person to speak. These facts were rather not controversial.

Taking part in a disturbance
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 (c) of the Act by creating or taking part in a disturbance within the precincts of Parliament while the House was meeting, by 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 and forcing the Speaker to suspend the proceedings temporarily and ultimately adjourning the sitting for the day.

This charge was laid against Mr L Shivambu, Ms R Mashabela, Mr N Matiase, Ms O Maxon, Ms M Moonsamy, Mr J Mngxitama

Mr Xaso referred to Rule 56, which says in the event of grave disorder the Speaker may adjourn the meeting or suspend proceedings for a period to be stated by him/her. Mr Xaso in his evidence and various parts of the footage used a pointer to identify the affected Members. The events were described by one witness as unprecedented, and breaking the rules. Mr Xaso was made to think about other occasions where similar events might have occurred. He said that there were outbursts of song and chanting of slogans, but distinguished it to the activity that took place on 21 August 2014. The affected Members were seen in the video footage rising one after the other in quick succession and the activity built up to a crescendo shouting, banging tables some with hands, pens and makarapa. The conduct was disorderly and the Members of the Committee might have had a different view, but it was not approximate to robust debate.  Inconvenient as the facts might be, they were rather uncontroversial and cannot be wished away.

Remaining in the chamber after the House was suspended.
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

This charge was against all the 20 EFF affected Members, namely Mr F Shivambu, Mr R Ramakatsa, Ms K Lithfield-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 evidence before the Committee was documentary, video and oral evidence of Mr Xaso. Two devices took the video footage; the fixed cameras and the ENG. Mr Xaso identified the affected Members on the video footage. The EFF were ordered to leave the House, the House was suspended so that they could leave the chamber. Despite the Speaker’s instruction, they refused to leave the chamber. That refusal was not accidental. The Sergeant at Arms interacted with Mr Malema and he told her that he was not going to be removed. Even when told that she was going to call security, Mr Malema told her to call them. The Hansard evidence captured Mr Shivambu saying the EFF would not be removed from the House. The evidence from the Deputy Chief Whip of the majority party and the Chief Whip of opposition party noted that the House could not proceed with its business. The evidence was not controversial. The questions to the President usually took two hours, which had never been sufficient. To avoid forcible removal of the EFF from the House by security, the Speaker chose to adjourn the House. The question was asked as to why only 20 Members were facing the charge when 25 of them were in the House on the day in question. The Speaker referred only 20 Members to the Committee to investigate whether the conduct of the persons was in contempt of Parliament, the Committee may decide to call the others should it find it necessary. However, that did not act as defence before the Committee. 

Speaking when not called to do so by the Speaker
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, the Speaker, without recognising you.

This charge was laid against Mr F Shivambu, Mr R Ramakatsa, Mr G Gardee, Ms K Litchfield-Tshabalala, Mr J Malema.

The evidence before the Committee included the Hansard, the video footage and the oral evidence from Mr Xaso.

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 Xaso identified the affected named Members when he testified before the Committee. On one occasion Ms Lithfield Shabalala spoke eliciting the response from Mr Holomisa “Haibo”-expressing his disdain and frustration. Mr Xaso was at pains to explain the recourse which Members could engage should they be not be satisfied with the answer given. The charge was straightforward, Rule 72 was clear and Mr Xaso explained that this breach was against the Rule and the Act. These were the rules imposed by the House upon itself by Members in a multi-party forum and subject to constant revision. The rules were currently in their eight edition. The Members could also propose a revision of the rules.

Failing to resume a seat when the speaker rose
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 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 preventing the Speaker from being heard without interruption.

The charge only applied to Mr Shivambu and Mr Ramakatsa. Rule 49 says 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.

It might be thought that Speakers in other forums behaved in imperious forms. The role of the Speaker to be heard without interruption was derived from the rules of the multi-party forum. The evidence was straightforward and not controversial. Mr Xaso also referred to the Guide to Procedure, which says to page 167 “whenever the presiding officer rises to address the House during a sitting, any members speaking or intending to speak must resume his or her seat and the presiding officer shall be heard without interruption”. The evidence speaks for itself. Members engaged with Mr Xaso until they could not pose any more questions.

The evidence served before the Committee was quite detailed made up from the Hansard, the various bundles, and the transcripts of the proceedings of the Committee. This concluded the summary of submission from Mr van Voore.

The Chairperson thanked with Mr van Voore for doing the work entrusted to him by the Committee. The Chairperson asked if any Members had questions to Mr van Voore of which no member raised a hand. The Committee would call Mr van Voore should it need assistance in future.

The Chairperson on behalf of the Committee expressed deepest condolences to three fallen South Africa sports heroes. May their souls rest in peace.

The meeting was adjourned