Hansard: 13 February 2020
Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act 4 of 2004
Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Act 9 of 2019
The Committee received briefings from the National Assembly Procedural Advisor and the Senior Parliamentary Legal Advisor on the work of the Committee and on the recent amendment to the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (Act No. 4 of 2004), which took effect in 2019.
The meeting discussed the differences between the Standing Committee on Powers, Privileges and Immunities of Parliament and the disciplinary committee. The Committee deals with instances of misconduct by Members which are referred to it by the Speaker. Where it believes, after investigation, that there has been contempt of Parliament, this leads to a formal charge against the transgressor. Where the Committee does not believe that the misconduct amounted to contempt of Parliament, it ceases to deal with the case – which may be referred to the disciplinary committee chaired by the Speaker.
Members remained concerned about the grey areas of misconduct and the fundamental difference between the disciplinary committee and the Standing Committee on Powers, Privileges and Immunities. The Committee requested details on the matters that came before the previous Committee in order to be capacitated on how matters were dealt with. The Chairperson also requested a copy of the judgment in the 2016 Constitutional Court case: DA v Speaker of the National Assembly
The Chairperson said that the view of the Committee is that Parliament should not pay for legal representation of a Member charged with contempt of Parliament.
The Committee considered and adopted its outstanding minutes and programme.
The Chairperson welcomed the Members and informed the meeting that he had met with the Administrative staff the previous week to draft a programme for the Committee. The meeting would focus on the orientation of the Committee which will inform and educate Members on the role of the Committee. The Committee will also consider the work of the previous Committee in the previous administration.
On step one of the process regarding the matter to be dealt with next week, only one Member was asked to leave the House. The rest of the Members of the party left on their own.
Apologies were submitted and noted.
Briefing on the Powers and Privileges by Procedural Advisor, Mr Victor Ngaleka
Mr Ngaleka took Members through the presentation and touched on the establishment and composition of the Committee. He referred to Rule 211 of the Assembly Rules which establishes the Committee as a standing committee as required by section 12 of the Powers and Privileges Act.
With regards to the meetings and decisions of the Committee, the default position is that meetings of the Committee are open to the public, subject to Rule 213(2). However, Rule 213(2) requires meetings of the Committee to be held in closed session when dealing with a matter affecting a specific member or Members and the Committee regards that matter to be confidential, unless the Committee decides to open a meeting in the public interest. Rule 162(1) and (2), stipulates that at least a third of its members must at all times be present for the Committee to conduct any business and that a majority of the members of the Committee must be present for it to decide any ques.
The Chairperson asked what the difference is between the disciplinary committee and the Standing Committee on Powers and Privileges.
Mr Ngeleka said that the composition of this Committee ensures that the principle of proportionality applies which is not the case in the disciplinary committee. Every political party in Parliament is represented in the disciplinary committee and it is chaired by the Speaker. The thinking around the review process (which led to a new disciplinary committee composition) was to allow Members to be spoken to by their own peers in a less formal environment. There is no procedure set out in dealing with disciplinary matters or misconduct in the disciplinary committee.
If the Powers and Privileges Committee, on the other hand, resolves to charge a Member after investigating a matter, an Administrator can be appointed to prosecute the case. There is no such a procedure in the disciplinary committee.
The Chairperson said that the explanation of the roles of the disciplinary committee and this Committee need to be elaborated because the two committees receive matters of misconduct by Members as well. The underlying difference between the two committees is fundamental in understanding the roles of each committee. He wanted to understand what regulates the functions of the two committees as well as the interface of the two committees.
Adv. Frank Jenkins, Senior Parliamentary Legal Advisor said that there are three misdemeanors; these include breach of the code of ethics, misconduct – breaching the rules of the House - and contempt of Parliament. If the misconduct of a Member amounts to contempt of Parliament, that matter will be referred to this Committee. If the Committee looks at the matter and decides that there was a breach of the rules, possible misconduct, then the Committee may report to the Speaker and indicate that the misconduct did not amount to contempt of Parliament. That misconduct may be referred to the disciplinary committee. Basically, the Committee deals more with matters on contempt of Parliament.
Ms E Peters (ANC) asked whether there is precedent on a matter that was decided on and Members withdrew their misconduct. Basically, after a decision was made by the Committee, the transgressor withdrew their misconduct.
Adv. Jenkins made an example of the 2014 disruption of the SONA (State of the Nation Address) where an Ad Hoc Committee was established and sanctions were put in place and adopted. There were matters in the previous Parliament that were referred to this Committee and some of those include Mr Ndlozi, Mr Shivambu and Minister of Home Affairs – ‘the issue with the finger’. Some of the Members apologized and the Committee decided to not go forward with the matters. There have also been matters were the Committee had decided not to more forward, when the Members had agreed to resolve the matter on their own accord – like apologizing to each other and so forth.
The Chairperson asked whether the Committee also dealt with misconduct.
Mr Ngaleka said that the Committee also dealt with misconduct but there is a grey area into it. The misconduct must amount to contempt of Parliament to be dealt with or considered in this Committee. It is the Speaker that refers a matter to the Committee; the Committee does not take initiative itself on a matter. Upon scrutinizing the matter, the Committee can then produce a report to the Speaker and advise on whether it will proceed with it or it should be referred to the disciplinary committee.
Mr M Hoosen (DA) suggested that Members were furnished with examples of cases that have been referred to the Committee. The point made by the Chairperson was important for the principle of consistency.
Ms Peters said that it seems the Committee was established after the 2014 SONA disruption and that was a joint sitting. She asked how the joint processes may be synchronized.
Mr Ngaleka said that the joint rules dictate that a Member will be dealt with according to the rules of the House they are a member of. National Assembly Members will be dealt with under the National Assembly Rules and the National Council of Provinces (NCOP) Members will be dealt with under the NCOP Rules.
Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (Act No. 4 of 2004)
Adv. Jenkins took the Members through the presentation and said that the Act came into operation on 7 June 2004, and amendments took effect on 6 May 2019.
The amendments addressed a Constitutional Court judgment of 2016: DA v Speaker of the National Assembly. The court ruled that definitions of “disturbance’ are very wide and it ordered Parliament to put in the section 11 amendment. Disturbance was redefined
The Chairperson felt that the case referenced by Adv Jenkins was too summarized and asked him to explain what Section 11 of the Act entailed. He also asked for the details of the Court case.
Adv. Jenkins explained section 11, so when the Court looked at section 11 it said that it created a possibility for the Member to be arrested and freedom of speech is very wide. The case came as a result of a disturbance in the House where everyone was removed from the House. This took place during the 2014 State of the Nation Address.
The Chairperson felt that the information was not adequate and asked for the exact details and the issue about the case. He asked for the Court’s judgment on the matter.
Adv. Jenkins said that he wanted to rather focus on the amendments that were made in the Act and the case that captures the crux of the work of the Committee. He would furnish the Members with the details later.
The Chairperson argued that Adv. Jenkins should rather focus on the Democratic Alliance v Speaker of National Assembly case. He believed that the case would provide the specific details the Members needed to understand the principle of matter.
Adv Jenkins said that the case came from the 2015 SONA where disruption took place in the House and as a result Members were removed from the House. Thereafter, the DA took the Speaker to court and the court ordered that Members should be removed from section 11 of the Act because of the wide definition of disturbance. A Member of Parliament in pursuance of freedom of speech cannot cause a disturbance in the House, but it is applicable to the members of the public rather.
The Chairperson asked for a brief explanation and background on what had happened. He felt that it impacts on the Act and Members need to understand the history and background of the case in order to understand the amendments mentioned by Adv. Jenkins.
Mr Ngaleka said that even though the court ruled on the removal of Members in section 11 of the Act, it went on and said that the striking down of the provision pertaining to Members did not leave Parliament defenseless in matters relating to Members of Parliament.
Dr A Lotriet (DA) suggested that the Members were provided with the Con Court judgment as it provided the background.
The Chairperson then asked for all the cases that impacted on the Act.
Ms Peters said that she thought the meeting would be an orientation and therefore, the Powers, Privileges and Immunities Act would explain the point to which led to the establishment of the Committee. Section 11 refers to Members of the public but it is not clear on who this is. There is also an issue with the different actions like misconduct and contempt of Parliament. She sought more details on those matters rather before Members can get into the cases.
There may be things that occur in the House and, as a Member of this Committee and of Parliament she asked: What about issues of conflict of interest? There are also matters that have been resolved outside this Committee; can Members receive a full account of their role as Members of Parliament and of this Committee?
Mr Hoosen said that the document he is in possession of referred to persons and Members, the Committee can only take action against Members not persons.
The Chairperson said that the cases and incidents that have been dealt by the Committee should be provided to the Members. This will enhance Members’ understanding and role of the Committee which will in turn assist Members on what the Committee will need to focus on. Thereafter, Members could be capacitated on the Act and the official responsibilities of the Committee.
Members resolved to continue with the exercise and made note of the matters that required more information.
Adv. Jenkins said that the Committee only deals with Members of Parliament and not ‘Persons’, which means that Section 11 cases will not be presented to the Committee because the Court ruled the removal of Members in that provision. In dealing with a referral, there is a schedule in the NA Rules which sets out the procedures that the Committee should follow in the investigation and the determination of allegations on contempt of Parliament.
On disciplinary action, the Committee must “enquire into the matter in accordance with a procedure that is reasonable and procedurally fair”. Then the Committee can table a report on its findings and recommendations in the House.
The Chairperson sought clarity on the procedure that would follow when the Committee discharges its duties in pursuance of a matter.
He asked whether the schedule prescribed a process that must be followed by the Committee in conducting an investigation. He also asked for more details on what other forms of investigations can be conducted by the Committee.
Adv. Jenkins said that the Committee can observe video footage or look at a report and then decide whether the matter fell within the ambit of the Committee or the disciplinary committee. The Committee would need to report back to the Speaker whether the matter was contempt of Parliament or misconduct.
If the Committee feels that a Member can be charged, the Member needs to be given an opportunity to respond. If the Committee feels that it should go forward, then an Initiator can be brought on board to draft the charges of the contempt of Parliament that will be presented to the Member (transgressor).
The Chairperson asked whether legal representation would be allowed in the hearing or in a committee meeting.
Adv. Jenkins said that the charges must be read to every single person, this came about after the EFF Members decided to leave the Committee meeting when the Committee was conducting its hearing. The Committee may allow at any point for the transgressor to have legal representation to ensure fair procedure. It is the prerogative of the Member (transgressor).
He laid out the fair procedure to be followed by the Committee.
The Committee conducts the investigation or inquiry by scrutinizing any evidence available such as observing footage or reading a report presented to it.
Take action to charge and consider appointing someone to help. It may be a person with a legal background. A charge sheet may be drafted and a date of the hearing decided. The Committee will also need to consider further representation or correspondence that must be presented at the hearing and whether it should proceed or not.
Determine whether the Member is guilty or not. The Initiator will produce all the evidence gathered and provide it all to the Committee to determine whether the Member in question is guilty or not guilty. If the latter is the case, the process ends. If not, the Committee proceeds with it;
Deliberations, arguments and come to a conclusion. When this process is concluded, the Committee will proceed to recommend penalties or sanctions.
Adv Jenkins advised that when the Committee starts getting to realize that it will charge and ask an initiator, when the charge is sent, the Member (transgressor) can be informed that they are entitled to legal representation.
The Chairperson said that the Member in question may bring legal representation at his or her own cost. Parliament cannot pay for a transgressor’s or a Member legal representation.
Mr Hoosen asked how would the Committee proceed in a situation would where the Member in question is the Minister. Is it the Department or the Ministry responsible for paying for that legal representation?
The Chairperson said that the Minister would have been charged while discharging his or her duties as the Member of Parliament. The same principle should extend to Ministers as well. However, consultation on this matter can be sought.
Ms Peters suggested that if there is precedent that speaks to this matter, the team should provide it.
Adv Jenkins asked what would happen if that Member then is successful in the case, now that Member would be financially misplaced for having hired legal representation.
The Chairperson said that the view of the Committee is that Parliament should not pay for legal representation of a Member in question. That should not be at the cost of Parliament.
Mr Hoosen said that the Member in question may bring a civil case against Parliament to recoup the costs incurred relating to the case. He wanted to know whether the Initiator would be solicited by the Committee or procured by Parliament externally.
The Chairperson said that Adv Jenkins had told him that some of the Members who were called into the hearing were very personal against Adv Jenkins when he was conducting the hearings and that affected him personally. He suggested that it would be wise to call on someone from outside. This exercise will then be conducted by Parliament after following due processes.
Information pertaining to previous cases would be submitted to the Committee.
Consideration and adoption of outstanding Committee minutes dated 25 February 2020
Members considered and adopted the minutes without any amendments.
Consideration of the Committee draft programme
Members considered and adopted the Committee programme.
The Chairperson indicated that due to the lack of a Legacy Report, Members should be provided with the previous matters that were considered by the previous Committee. Information pertaining to the cases will also be provided to give Members a sense of how the process unfolded previously.
The meeting was adjourned.
- Procedural Advisor presentation
- Legal Advisor: Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (Act No. 4 of 2004)
- Physical Removal of Member from Chamber on Removal of members from Committee Room E249 during mini-plenary debate on Budget Vote 11: Public Enterprises on 11 July 2019
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