Enquiry into the Conduct of 20 EFF MP: Adoption of Final Report

Powers and Privileges of Parliament

10 November 2014
Chairperson: Mr B Mashile (ANC)
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Meeting Summary

The Committee went through the draft report of the hearing into allegations of conduct constituting contempt of Parliament by members of the National Assembly. No substantial amendments were made. The Committee wanted to make sure that the report was a true reflection of the events that had taken place at the hearing since its commencement. Members indicated that the report must stand the test of the courts, as media reports had indicated the EFF Members had threatened court action. 

Meeting report

The Chairperson welcomed Members to the hearing.

Mr Victor Ngaleka, Committee Secretary, read the framework of the report starting with a referral by the Speaker, the membership of the Committee during the hearing, the decision to appoint the initiator, the delivery of notices to affected Members, the number of meetings the Committee held on the hearing, pleading to the charges, the witnesses called, affidavits submitted, evidence before the Committee, and the findings of the Committee

Mr B Bongo (ANC) suggested that the Committee go through the report page by page, rather than first reading the framework of the report

Mr M Booi (ANC) said the report was not systematic, and it was important for the Committee to go page by page and ensure that the report conformed to the manner in which events had occurred.

The Committee agreed to go page by page, proof-reading and editing everything.

Ms J Kilian (ANC) said the title of the report was too long and must be shortened. Her surname had only one “L” in it.

Mr M Mdakane (ANC) said the focus should be on the overall summary of the report. The legal team must have looked at the report, as the media was reporting that the EFF would take the Committee to court. The report must stand the test of the courts, so that the Committee would not be labelled a stupid Committee that did not even understand what it had written about.

Corrections were also made to Members’ initials, were second name initials had been written first.

Ms Kilian asked if it was correct that Mr D Twala (EFF) had said he left the meeting because of the Committee’s decision to continue without hearing from all witnesses. She suggested that it be recorded that he left the meeting, and never came back.

Mr Bongo asked if it was necessary to refer to the affected Members as EFF Members, or as Members of the National Assembly.

The Chairperson said it must be recorded as 20 Members of the National Assembly, as the Committee had not charged Members of the EFF, but Members of the National Assembly.

Mr Bongo asked if the statement, that the Economic Freedom Fighters had taken the Committee to the Western Cape High Court, which had dismissed the application challenging the legality of the referral by the Speaker, just summarised the court outcome.

Dr A Lotriet (DA) said the case had not been dismissed, but was struck off the roll.

Mr Gary Rhoda, Parliamentary Legal Advisor, said it was true that the case had been struck off the roll, but the court had dismissed the claim that the Speaker did not have the power to refer the matter to this Committee.

The Chairperson said a paragraph should be added, explaining the court outcome.

Mr Booi said the report must have a heading: “Start of Hearing.”

Ms Kilian said the charge of refusing to withdraw immediately from the Chamber for the remainder of the day’s sitting when were ordered to do so by the Speaker, was omitted in respect of Mr Malema.

Ms Kilian said that the heading, “Pleading to the Charges,” was repeated twice.    

Dr Lotriet had a problem with the words “representation by Mr Malema” in inverted commas and asked if it was necessary, as it created a value judgment.  

Mr Bongo said the representation was adopted as an indulgence, and as it was not in terms of any rules or legislation to accept the representation, hence the inverted commas.

Mr S Esau (DA) said while the legislation was quiet on the representation, putting the word in inverted commas would have implications.

Mr Mdakane said it was immaterial to put in inverted commas, or not. It did change the essence of the story. The Committee must make sure that what was reflected in Hansard agreed with the report so that the Committee would not be accused of trying to doctor information. The representation was not mitigation but a broad political statement, as the EFF Members never pleaded to the charges.

Ms Kilian suggested that it be written: Honourable Malema requested to make certain representation to the Committee on behalf of the affected members of his party. The Chairperson, on behalf of the Committee, noted that the Act and the Rules do not provide for the making of any statement. Nevertheless, the Committee allowed Hon Malema to proceed. Hon Malema read a written statement into the record and gave a copy of the written statement to the Chairperson. This was agreed to.

Dr Lotriet took issue with the statement that the Committee considered and accepted the legal opinion. It had been presented as a legal note by the parliamentary legal adviser, and not a legal opinion.

Advocate Frank Jenkins, Parliamentary Legal Advisor, said whether it was referred to as a legal note or legal opinion, it did not change what he presented, and the Committee was free to use any phrase or submission by the Parliamentary legal advisor.

Mr Bongo said it constituted a legal opinion, as the Committee Members were exchanging views, and when the legal team came and gave an opinion, this enabled the Committee to move forward.  

The Chairperson asked if there was any difference between a legal note and a legal opinion.

Dr Lotriet said she had referred to this specifically, as in the discussion she had been corrected that it was a not legal opinion, but a legal note. The Committee could decide to be genuinely accurate or could choose the general standard that it was a legal opinion.

Mr Mdakane said whatever the Committee was deciding or arguing about should be based on its material effect. If legal notes, advice or opinion were the same, there was no reason to spend time on something without material effect.

The Chairperson said the notes gave a legal opinion to understand the representation by Mr Malema, so legal opinion sufficed.

Mr Mdakane said if it was written legal notes, the Committee must just write notes and close the matter.

Ms Kilian suggested that to close the matter, the Committee could write: the Committee accepted a legal opinion presented as a legal note by the Parliamentary law advisor. This was agreed.

Dr Lotriet said the surname of John Steenhuisen had one “s”.

The Chairperson asked for the correct name for chief whip of the Opposition.

Mr Rhoda replied that in terms of the government gazette, the position was noted as chief whip of the largest minority party.

Mr Esau suggested that the statement that all political parties represented in the chief whips meeting were present was problematic, as the EFF’s chief whip was absent.

Mr Mdakane suggested that it should be written that most political parties were present in the chief whips’ room.

Mr Bongo asked if it was necessary to note the names of Members who found the affected Members guilty, or just note that five Members voted for this, with three against.

Mr Mdakane said it was necessary to note the names to set a precedent, as at times Members of the same political parties had different opinions. However, the emphasis should be on whether the report was a true reflection of the events that had occurred.

Ms M Mothapo (ANC) said it was important to explain the rule on which the Chairperson would have a deliberate vote.

Ms Kilian said Ms Litchfield-Tshabalala was facing six charges, and the report noted only four.

Dr Lotriet proposed that the Committee write its findings only on affected Members, and not to include those from the initiator.

Mr Mdakane agreed that it may be necessary to do so, and the initiator’s findings should then be put as an annexure to the report.

Ms Kilian agreed with the above, and then proposed that the initiator’s findings be excluded but the aggravating and mitigating factors be included.

Mr Booi suggested that a summary of the initiator’s findings should be condensed into one paragraph from 20 pages, and then a referral to the annexure be indicated.  

Dr Lotriet said the report should note only the findings of the Committee deliberations on Members found guilty, and exclude the initiator’s findings

Ms Kilian suggested that one paragraph be included that said that the initiator’s findings were contained in an annexure so that every reader could refer to it.

The Chairperson asked if it was necessary to group the affected Members in three groups.

Mr Bongo and Mr Mdakane suggested that it should remain like that to help those who would read the document.

Mr Mdakane said that where the report indicated that Members concurred, it must include what they concurred on.

Mr Booi suggested that where the word “concurred” was used, “agreed” should be used.

Ms Kilian suggested that the statement following findings of the Committee and by the initiator, and deliberated on appropriate penalties against Members found guilty, and then proceeds to mention the penalties against the affected Members in groups, be included.

Mr Mdakane said the above suggestion would be appropriate as it indicated what the Committee would have concurred on in the findings.

Ms Kilian said that listing the penalties under a different heading was clumsy and repetitive on the Members found guilty.

Dr Lotriet suggested the dissenting views of the Members could be included in the report.

Mr Bongo said it may be unnecessary to include them, as the report also did not include what the Members who agreed on the guilty charges, had said.

Mr Mdakane agreed that it may be unnecessary to include the dissenting views, because Mr Filtane for example, never found any Member guilty.

The Chairperson said there was a provision that the Committee may not submit a minority report, but where there was a provision, it was necessary to include the dissenting views.  

The Chairperson asked for adoption of the report.

Mr Mdakane proposed adoption of the report, and was seconded by Ms Mothapo.

The report was duly adopted.

The Chairperson thanked the Members for the support and cooperation from the start of the hearing until the adoption of the final report. He thanked the legal services and support staff, and the guests from the media for communicating the work that had been done in the Committee to the public. The Committee had set a new path in dealing with matters like this, and the manner in which it had been done had set a high standard precedent for dealing with matters of such a nature, even though there would be room for improvement.

Mr Mdakane asked when the Chairperson was going to table the report to the National Assembly.

The Chairperson said the report would go for editing, and then it will be out of his hands. The three day rule did not apply to a report like this.

Mr Mdakane said it remained the Committee’s report until it was adopted or rejected by the House. He did not want a situation where the report was be tabled in the House without prior notification to Members of the Committee.

The Chairperson said it would appear on the programme of the day and Members would be made aware of when it would be presented.

The meeting was adjourned. 

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