Hansard: 13 February 2020
Hansard: 11 July 2019 & Video
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
Video footage of two incidents involving National Assembly plenary disruptions was observed by the Committee. The first incident took place during Public Enterprises Minister Pravin Gordhan's July 2019 budget vote address where members of the Economic Freedom Fighters (EFF) disrupted the Minister and stormed towards his podium which subsequently led to them being removed by Parliament security. The second incident occurred at the February 2020 State of the National Address (SONA) where a back and forth ensued between EFF members and the Presiding Officer about the invitation extended to former President FW De Klerk. The sitting was disrupted for an hour and half. These incidents were referred to the Powers and Privileges Committee of Parliament.
The Committee's view was that there is enough evidence to show that there was indeed a transgression. The 19 EFF members that charged towards the Public Enterprises Minister must be charged. It is understood that two of the Members have since resigned from Parliament. The Committee will decide on the hearing date for the Members charged at the next meeting and request the Speaker to appoint the initiator of the disciplinary hearing.
On the SONA disruption, it was decided that this needs further legal investigation considering the pitfalls such as deciding who is in contempt and deciding which specific Members are at fault and also considering the Speaker did not enforce her rulings. The Parliament legal team said it had constrained resources at this stage of the parliamentary session to do this investigation. The Committee said the Speaker should be requested by the Parliament legal team to appoint an investigator. In the next term, a report of the findings by the investigator must be submitted to the Committee.
The Chairperson requested that there be a step-by-step procedure manual to guide the Committee in making decisions on matters referred to the Committee.
Adv Frank Jenkins, Senior Legal Advisor for Parliament, said he is in the process of creating such a manual which will be available at the next meeting.
Matters referred to the committee
Adv Victor Ngaleka, Procedural Advisor for Parliament (National Assembly), briefed the Committee on the referral. He said that the first incident took place during Public Enterprises Minister Pravin Gordhan's July 2019 budget vote address where members of the Economic Freedom Fighters (EFF) disrupted the Minister and stormed towards his podium which subsequently led to them being removed by Parliament security. The second incident occurred at the February 2020 State of the National Address (SONA) where a back and forth ensued between EFF members and the Presiding Officer about the invitation extended to former President FW De Klerk. The sitting was disrupted for an hour and a half. It was thus recommended that these matters be referred to the Committee of Powers, Privileges and Immunities of Parliament.
The Chairperson stated that with the SONA incident, Members of Parliament left on their own accord. The Presiding Officer asked that only one MP leave the house. Thus, if other MPs left of their own will, is the matter within the jurisdiction of the Powers, Privileges and Immunities of Parliament Committee?
Prof A Lotriet (DA) said that the point the Chairperson makes, has been raised before. The Powers, Privileges and Immunities of Parliament Act which governs what is referred to this Committee does not require a Member to be removed from a sitting for the matter to be referred. The fact that the Speaker had to adjourn the sitting shows the severity of the matter.
Ms D Peters (ANC) said that in her memory, there were actions and utterances that preceded Members walking out. The Speaker called on Hon Nokulunga Sonti to leave the house, which she did not. This created commotion and a debate on why she should leave the house. The entire events of the day need to be taken into consideration. The actions of the EFF before people had even left were referred to this Committee.
The Chairperson said that what needs to be determined when viewing the video footage, is if Members of Parliament were exercising their right and to determine what role the Presiding Officer played in the matter.
Budget Vote Speech incident
The Committee watched the video footage of the July 2019 Budget Vote address.
The Chairperson commented that it is clear from the footage that 19 EFF Members charged towards Minister Gordhan.
Prof Lotriet said that in her opinion there is enough evidence to charge the Members in terms of 7(a), (c) and (d) of the Act.
Ms B Maluleke (ANC) agreed that there is enough evidence to charge the Members in question. She asked to review the footage to see if Members that charged the podium towards the end were already in the House or came from outside.
The Committee reviewed the footage and established the Members in question were all in the House.
Although there was a not a quorum, the Chairperson said that the general view is that there is enough evidence to show there was indeed a transgression and that the next step of action should be taken.
State of the National Address (SONA) incident
The Committee watched the video footage of the February 2020 State of the National Address.
The Chairperson observed that the Speaker made a ruling that the matter of Former President De Klerk's presence was closed and no more points of order would be taken. Members continue to make points of order on the matter and the Presiding Officer entertained these despite her initial ruling. Considering this, is this a matter for the Powers and Privileges Committee? The joint sitting had one item on the Order Paper and thus, a debate about a former president's invitation to the sitting – which is out of the control of the 400 Members of Parliament – should not have been allowed. The Speaker made a ruling but did not reinforce it. Following the President coming to the podium, it is observed that the point of order procedure was abused. Members stood without recognition but they sit down when told to. Ms Sonti is the only person told to leave but does not. Where is the contempt?
Ms Maluleke agreed that it is difficult as the Presiding Officer made a ruling and did not follow up on it. However, it is seen that a total of about seven EFF Members stand up at the same time making points of order.
Prof Lotriet stated that they should not confuse the Presiding Officer’s patience with whether there was contempt or not. The other Members of Parliament said in the sitting that the disruption was impeding on their rights. Considering that the points of order went on for about one and a half hours and the sitting was then adjourned, it must be considered improper.
The Chairperson said that individuals need to be charged in line with the Constitution. Where is the line drawn as multiple people from various parties stood up without being recognised? What is misconduct – standing without being recognised or speaking without being recognised?
Ms Peters said that the Chief Whip of the Opposition and others made specific statements recommending that the conduct of EFF MPs was an act of contempt in terms of the Powers, Privileges, and Immunities of Parliament Act and it should be referred to this Committee for disciplinary consequences.
There has been a formal complaint as the House was placed in disrepute due to the interruptions and thus the Presiding Officer recommended it to this Committee. The one and a half hours of disruptions and the infringement of other Members' rights is contempt itself. The Speaker said she was not going to allow anyone to raise further points of order yet she allowed them to continue. Pinpointing individuals will not help. It was a collective decision that the House cannot make points of order. Thus should there be an investigation to show the actual transgressions by specific Members? If they look at only one person refusing to leave, it reduces the matter to just one issue when the whole 90 minutes of disruptions is the issue.
The Chairperson said that charging Members needs to be done in an individual capacity, therefore, an investigation needs to be looked at. The steps referred to are about probing and investigating which the Committee is undertaking. However, the incident must be investigated further as it seems there was incompetence on the Presiding Officer’s part not to maintain order and enforce rules.
Ms Peters said that the cases should not be discussed as yet. A discussion should follow after the matter is investigated and a report with findings released. Is the investigator appointed by the Committee?
Legal Advisor response
Adv Jenkins said that it is the Committee's responsibility to investigate the incident. However, the initiator of a disciplinary hearing is not a committee member.
The Chairperson referred to page five of the meeting minutes dated 4 March 2020 that state that after a preliminary investigation, the Committee could formally charge a Member or Members. The Powers and Privileges Act recognises there can be an investigation thus it is important that an investigation occurs by a legally trained person. Despite watching the video footage of the incident, individuals need to be charged. The step-by-step procedure manual is needed urgently to guide the Committee so that the process can be coherent. The first step has been completed as agreed in last meeting, thus the next step needs to be taken.
Adv Jenkins said that the resources of the Parliament legal team are constrained, especially before recess periods. Step 1 of the process is investigation, which was prioritised for the current meeting. The step-by-step manual is set to be created after the meeting. If additional resources are needed more urgently, then procurement must be done. An investigation needs to be done and a decision must be made if there was contempt or not. There are various dangers that everyone must be aware of. An investigator is a private attorney. The attorney will see dollar signs when approached by Parliament. Many people in the footage have made mistakes. As per the courts, there may be robust debate but the Committee should decide if there is contempt as per the definition. The issue in question is deciding if the disruptions were willful as per the definition. ‘Willful’ is a subjective concept and it can be argued that the disruptions must be considered contextually.
The Chairperson said that he did not know Adv Jenkins was overwhelmed by work. The manual is of course important as it is difficult to decide who to charge and deciding the fault of specific Members. It is seen that some Members of other parties made transgressions such as speaking and standing without being recognised. However, it seems to be in retaliation to the EFF’s disruptions that the Speaker was unable to recognise them. He said considering if the Speaker is at fault is difficult. The reason this should be recommended to an investigator is for advice, considering the very serious doubts raised. Standing up on a point of order is allowed, not being recognised and then sitting down is not contempt. If the person next the person making a point of order also stands, although it was probably planned, if they sit, is it contempt? It seems that the Committee is treading on thin ice.
The Chairperson said that the SONA matter needs to be investigated by a legally trained person considering the shortfalls mentioned. In the matter of the Budget Vote Address, the 19 EFF Members that charged towards Minister Pravin Gordhan must be charged. It is understood that two of the Members have since resigned. In the next term, the Committee needs to decide on the hearing date for the Members charged in the Budget Vote Address incident. Secondly a report with findings by the investigator must be submitted to the Committee.
Adv Ngaleka said that in the Budget Vote Address incident, Members of Parliament seen approaching the podium in defence of the Minister are clearly not aggressors and should not be charged. Those charged need to be requested to state why they should not be charged. Between now and the next meeting, the initiator must also be appointed.
Prof Lotriet said that names of initiators were previously provided to Parliament. She asked who will draft a letter to the Speaker requesting the appointment of the initiator and the investigator.
Prof C Msimang (IFP) said that names of potential investigators and initiators should be given to the Speaker to expedite the matter. He agreed on the need for investigation to avoid the chaos that may ensue if charges are withdrawn and Parliament loses the case.
Adv Jenkins said that the legal advisor team will draft the letters to the Speaker.
The Committee adopted the minutes for the 4 March 2020 meeting and the meeting was adjourned.
No related documents
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.