The conduct of Mr Malema during the president’s budget vote was not in contempt of Parliament. This was the advice the Subcommittee on Review of Rules was given when it received a legal opinion on the conduct of Mr Malema (EFF) which indicated there was nothing in the rules of the National Assembly (NA) that prohibited the kind of speech attributed to him. This followed a call by Mr Malema that people must occupy unoccupied land.
The legal opinion found that Mr Malema’s conduct could be interpreted as an abuse of privilege because it was seen as a deliberate attempt to say something inside the House that could not be said outside of it. However, this was not precluding the NA from inquiring into the conduct of Mr Malema in respect of the possible abuse of privilege as set out in the rules.
The legal opinion was clear -- there was a need for the Committee to create specific rules if there was a need to discipline Members. It indicated it was important to consider Rule 69 (g) and (h) and Rule 69A (1) and (2).
The Subcommittee was unable to deliberate on the report of the House Chairperson, Ms Thoko Didiza, regarding a ruling given about Mr John Steenhuizen, as neither was able to attend the Subcommittee meeting and requested a postponement.
Members wanted to understand what the implications for the process would be, and asked what the basis of the Subcommittee’s exercise would be in going forward; remarked that a sworn-in Member of Parliament had to uphold the constitution and the laws that govern the country, and had no right to do what was contrary; and agreed that the Subcommittee was not making a pronouncement on the issue, but was only being guided by a legal opinion.
Conduct of Mr Malema during Presidency Budget Vote: Legal Opinion
Mr Perran Hahndiek, National Assembly Table Procedure Adviser: Parliament, informed the Committee the Deputy Speaker had made a ruling in response to comments made by Mr Julius Malema (EFF) during the Presidency’s Budget Vote. The Deputy Speaker had indicated that Mr Malema’s allegation, that the Deputy Minister of Intelligence was “the one who was number one in defending corruption taking place in the intelligence…including the intelligence department itself,” was un-Parliamentary. The Deputy Speaker had also said the call by Mr Malema for “our people to occupy the unoccupied land” raised serious questions in light of the oath taken by Members of Parliament to uphold the laws of the Republic. The Deputy Speaker had indicated the issue should be taken up in the appropriate structures.
Mr F Shivambu (EFF) had written to the Speaker to express his party’s dissatisfaction with these rulings and contended that Section 58 of the Constitution was affording Members the right to free speech. The Speaker had written to Mr Shivambu to indicate she had referred the matter to the Rules Committee.
Adv Frank Jenkins, Parliamentary Senior Legal Adviser, said the legal opinion was stating two things. There was nothing in the rules or orders of the National Assembly that specifically and directly regulated or prohibited the kind of speech attributed to Mr Malema, or a rule that found that Mr Malema was in contempt of Parliament. The second one tried to create a scope, there was a deliberate attempt to say something inside the House which could not be said outside the House. That could be interpreted as an abuse of privilege by the Member. This was not precluding the National Assembly from inquiring into the conduct of Mr Malema in respect of the possible abuse of privilege as set out in the rules. It was clear there was a need for the Subcommittee to create specific rules if there was a need to discipline Members. It was important to consider Rule 69 (g) and (h) and Rule 69A (1) and (2).
Mr N Paulsen (EFF) said party Members were the victims of what people perceived them to be and what they said about them during the sittings of the National Assembly. He felt they were vindicated about what Adv Jenkins had found when he said there was nothing in the rules that indicated Mr Malema was in contempt of Parliament. The essence of a democratic parliament would be lost if freedom of speech inside the House was starting to be limited.
Adv Jenkins said one needed to be very cautious when one started limiting freedom of speech inside the House. There were various ways of dealing with ill-discipline and un-parliamentary language inside the House, but to make rules for limitations on free speech was also important.
Ms J Kilian (ANC) said there were already limitations on free speech. There were limitations on what was un-parliamentary language. The only way to curtail such conduct was through the rules. When one was a Member of Parliament, one had to abide by what was acceptable. A sworn-in Member of Parliament could not do what was contrary. As a sworn-in Member, one had to uphold the constitution and the laws that govern the country. The rules had to be developed on the basis of what the constitution wanted them to do. She said it would not be wrong to develop rules that limited free speech inside the House, if the rules could make provisions for that, and a case of abusing privilege could be made if one broke the rules.
Mr M Booi (ANC) said the decisions were based on the rules. He wanted to understand what the implications would be for the process, and asked what the basis of the Subcommittee’s exercise would be in going forward.
Mr Hahndiek said they had to consider all the possibilities. The Subcommittee had to deal with the matter carefully. It also depended on how quickly the Subcommittee would deal with the process.
Adv Jenkins said the process was there already. The Rules Committee could take a decision, adopt it, and submit it to the House. There were rules for free speech in the House, and if the Subcommittee needed to expand them, the it should make a decision on that. Politicians had to use Parliamentary language when addressing issues, and not speak like activists.
Mr Paulsen remarked that the ANC was implementing rules, thinking it would be in power until Jesus comes back. The call for the occupation of land was not the position of Mr Malema, but that of the EFF. Limiting the freedom of speech would downplay what a democratic parliament should look like.
The Chairperson commented he did not think the Rules Committee would be sitting in the near future. The Subcommittee should set up processes and proposals, and submit them to the Rules Committee so that matters could be taken up by the new members of the Rules Committee. The Subcommittee should accept the legal opinion and take the matter forward, even though there were legal challenges on the issue because the rules had addressed the matter vaguely.
Mr Booi said the Subcommittee had always looked for fairness, and such matters had a direct impact on the Members. The Subcommittee had to make proposals to the Rules Committee which would then let the political parties engage, and then take the issue back to the Subcommittee for polishing. Whatever the Rules Committee would agree on, that had to be taken to the House. The process was very important. The Subcommittee must have a substantial motivation from the legal adviser so that it could move forward. He cautioned about writing rules that would lead to the courts. He indicated they might not get even to the constitutional court if they pushed things, and Parliament would be seen as an institution that could not make even its own rules.
Ms Kilian suggested Members should conclude that rules were necessary. The legal opinion indicated there could be a case made for abusing privilege, but that could not be attached to any of the rules of Parliament. Members were dealing with a Member of Parliament who incited people to take land, yet the constitution said one could not occupy land. The Free State matter was not the concern of the Subcommittee. Parliament had set a bad example because if one looked at universities now, one would see people who could not engage. Everything was done radically. The Subcommittee must deal with the matter, conclude its work, and submit a report to the Rules Committee.
The Chairperson said he noted all the concerns raised by Members. The recommendations would be sent to the Rules Committee, and whenever it decided to sit, it would look at the Subcommittee report.
Ms Kilian stated the review of the rules process had confronted the idea of abuse of privileges. It indicated that the link between the rules of Parliament and the abuse of privileges should be clearly defined.
Mr Booi suggested the Subcommittee should be guided by the principles regarding what Mr Malema had said. It was not necessary to have Mr Malema before the Subcommittee, because that would derail the Subcommittee’s work. The legal opinion should look at fairness and free speech in its memorandum.
The Chairperson said the Subcommittee was not making a pronouncement on the issue, but was only being guided by a legal opinion. Hence the proposal of the two rules (69 and 69A) had to be considered by the Subcommittee.
Adv Jenkins said that when the Subcommittee drafted the new rules, it needed to look at what the Constitution underpinned. What the Subcommittee needed to do was to say there should be rules that sought to see if there was deliberate misconduct inside the House.
The Chairperson said that what one could not say outside Parliament, one would naturally not say it inside Parliament. Human Settlements had got rules that guarded against occupying land. That was the law, and to say to people that they must occupy the land was something against the law. The rules should be there, but they should not curtail freedom of speech.
Report of House Chairperson on Mr Steenhuizen ruling
Mr Hahndiek informed the Subcommittee that Ms Thoko Didiza, the House Chairperson, and Mr John Steenhuizen (DA), had requested for a postponement. They both were unable to attend the Subcommittee, though they wanted to make a presentation. The matter would be continued when they were both available.
Ms Kilian said the ANC had been referred to by many names, and it had never taken up the matter, but in this case a Member had been called names. That was the issue. She suggested the next Rules Committee should look at the rules when dealing with such matters before Members accepted this as an exceptional ruling before Ms Didiza and Mr Steenhuizen appeared before the Subcommittee.
Ms Tanya Lyons, NA Table Procedure Adviser: Parliament, said it was important to distinguish between remarks made to individuals, and those made to political parties. The ruling itself concentrated on those principles. She said this was appearing to have been addressed, or referred, to Members.
The Chairperson indicated many rulings were about a Member and a party, but that line was very thin because a party was a party because of its members. To refer to a party as a racist party had never been an issue. But when one referred to a Member as a racist, then that was un-Parliamentary. The Subcommittee was being guided by these principles. The Subcommittee would wait until the two Members, Mr Steenhuizen and Ms Didiza, were ready to appear before the Subcommittee.
The meeting was adjourned.
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