SONA incident: Legal Opinion; Public Enterprises Budget Vote 2019 incident: External Initiator Appointment

Meeting report

Opening Remarks

The Chairperson welcomed Members and apologised for taking them away from their constituency work but the Committee had been awaiting the legal opinion on the SONA incident since March 2020 and he had felt it was an urgent matter.

The meeting was quorate. The meeting was a follow-up to the Committee meeting of 11 March 2020. A number of issues had been decided at that meeting: one was that the Committee had advised the Speaker that there should be further investigation into the incident that had happened at the State of the Nation Address (SONA). The Committee also requested the Speaker to obtain a legal opinion on the matter as during the Committee discussions, there were diverse views on the Committee’s jurisdiction over the matter and the Committee was not sure of the events of that day. Since that point, the Committee had been waiting for the legal opinion.

The Chairperson had sent a number of reminders to the Office of Constitutional and Legal Services (OCLS) but had only received the opinion some three weeks back. He was unhappy with the delay as the Speaker had requested that the matter be handled expeditiously. He requested an explanation from OCLS for the delay in receiving the legal opinion. He again explained to Members that he had called the meeting during the constituency period because of the urgency of matter.

The Chairperson stated that the second matter was the appointment of an initiator. The discussion in the meeting had been that the Committee should avoid assigning the staff of Parliament to lead the questioning of Members of Parliament. The briefing from OCLS would include a statement regarding the appointment of the initiator.

The agenda was flighted on the screen.

Committee Minutes

The minutes of 11 March 2020 was shown on the screen. Members discussed the style of capturing minutes. Members requested that the minutes of the Committee be consistent with the parliamentary style of recording minutes.

The Chairperson advised the Committee Secretary to ensure that future minutes were not verbatim but consistent with the parliamentary style of recording meetings.

The minutes of 11 March 2020 were adopted with the amendments as discussed. There were no objections.

The Chairperson requested the OCLS to make a presentation on the legal opinion received and to give the reason for the delay.

Presentation by the Office of Constitutional and Legal Services

Adv Frank Jenkins, Senior Legal Advisor, OCLS, stated that he had brought two Legal Advisors with him:

Ms Thiloshini Gangen would present a summary of the legal opinion to the Committee and Adv Andile Tetyana who would deal with the appointment of the initiator. The briefing of the state attorney had not been delayed but the processes to appoint counsel had been a slow process. The Office had thought that one person would deal with the whole process but it had not worked out that way.

The letter of 18 or 19 March 2020 from the Speaker to appoint counsel had required approval. In addition to that, an approval related to the budget was required to ensure that the OCLS received an adequate budget to pay for the legal opinion. However, Parliament had been dealing with the implications of the implementation of the Disaster Management Act that led to a lockdown and staff had not been in their offices.

Adv Jenkins admitted that the OCLS had not held the ball, especially as the legal advisors did not have administrative support. However, the main delay was waiting for the go-ahead. Once the go-ahead had been given, and he suggested that maybe the parliamentary Table officials could assist there, his Office had started the process but one delay had snowballed into the next. Authority had been given by the Acting Secretary of Parliament in mid-July and the legal opinion had been received in mid-August.

Adv Jenkins requested that Ms Gangen be permitted to discuss the legal opinion as she had received it and had prepared the document that been sent to the Committee.

The Chairperson requested that the causes for the delay be put in writing as it was definitely going to be one of the questions raised by everyone as it was five to six months since he had written the letter following the meeting of 11 March 2020. He asked for a detailed chronology to be sent to the Committee Secretary.

Adv Jenkins agreed to do so.

Legal Opinion on the SONA incident

Ms Gangen stated that a memorandum had been drafted which summarised the legal opinion concerning the SONA incident which had been referred to the Powers and Privileges Committee. The question was whether the incident had constituted a violation of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act 4 of 2004. The incident at SONA had been referred to the Committee for deliberation and a report and the Committee had had divergent views on whether the conduct of Members constituted contempt of Parliament. Authorisation was obtained to procure an external legal opinion. The questions for deliberation were whether the Committee had jurisdiction to consider the complaint and whether the incident constituted contempt of Parliament as contemplated by the Act.

On the latter question, counsel pointed out that the Schedule to the Rules of the National Assembly envisaged a procedure whereby the Members had to be given the opportunity to put forward their version of events to the Committee before any contempt of Parliament could be considered. Counsel, therefore, avoided making a premature pronouncement but emphasised that the Act envisaged that section 13 of the Act, specifically when read with the relevant parts of section 7 of the Act would constitute contempt.

Section 7 of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act states that:

A person may not- (a) improperly‘ interfere with or impede the exercise or performance by Parliament or a House or committee of its authority or functions;

(e) while Parliament or a House or committee is meeting, create or take part in any disturbance within the precincts

Ms Gangen stated that in view of the facts presented thus far, counsel was of the view that section 7(a) and/or (e) might have relevance. On the question of whether the Committee had jurisdiction, counsel referred to Rule 214 of the Rules of the National Assembly.

In respect of the Rules, section 13, Rule 214 states that:

The committee must consider any matter referred to it by the Speaker relating to contempt of Parliament or misconduct1 by a member or a request to have a response recorded in terms of Section 25 of the Powers and Privileges Act, except a breach of the Code of Conduct contained in the Schedule to the Joint Rules. (2) (a) Upon receipt of a matter relating to contempt of Parliament or misconduct by a member, the committee must deal with the matter in accordance with the procedure contained in the Schedule to the Rules of the National Assembly. (b) The committee must table a report in the Assembly on its findings and recommendations in respect of any alleged contempt of Parliament, as defined in Section 13 of the Powers and Privileges Act, or misconduct.

Ms Gangen stated that the Committee had to deal with the matter, premised on the Speaker’s Request.

Counsel could not give a definitive answer on whether it was contempt because the Members had not yet given their version of events. The procedure, as envisaged in the Rules should first be followed and only after that procedure could a decision be made. The recommendation was that the procedure as envisaged in the Rules had to be followed.

The Chairperson asked for an indication of the proposed way forward.

Ms Gangen stated that the procedure as per the Rules was that the Members had to give their version of events to the Committee and only once they had been heard, the Committee could proceed. It was, in effect, the Audi alteram partum rule which stated that anyone who was charged had to be permitted to give his or her side of the story.

The Chairperson invited the Committee to raise questions.

Discussion

Dr M Ndlozi (EFF) stated that it was his first attendance at a meeting of the Committee so he had not seen the Speaker’s complaint. He found that there was a big problem if one had to consider several judgements that had been handed down by the courts in relation to disturbances and those judgements had not even been mentioned in the legal opinion. The constant referral to a party was wrong. The courts had pronounced that one could not talk about EFF Members or DA Members when one was talking about the conduct of Members. One had to talk about individual Members and what those individual Members had done. One had to state which Member and what that Member had done. The talk of EFF Members would fall apart in any court of law. There were many legal precedents to refer to and any procedure that referred to a group of Members fell short as a group was wrong. He asked for clarity about the language used in the legal opinion which referred to “EFF Members” throughout. That would not be legally wise. He was open to correction on that point if everyone knew who the individual Members were. Who were those Members? Had they been identified by the Committee? He could provide the court judgements if need be.

Dr Ndlozi asked if he could make some comments on the legal opinion and proposals to the Committee.

The Chairperson wished to deal with all questions first.

Dr Lotriet had a comment and not a question, so she refrained from speaking until the meeting was opened to comments.

The Chairperson explained to Dr Ndlozi that there had been a referral by the Speaker, the matter had been tabled and included in the Announcements, Tablings and Committee Reports (ATC’d) and the Members of the Committee had been appointed by Parliament. The Committee had received a mandate. He suggested that the Secretary provide a copy of the minutes of previous meetings to Dr Ndlozi. Adv Frank Jenkins had taken the Committee through past judgements at the previous meeting and Dr Lotriet, who had been in that Committee in the previous Parliament, had also discussed the court judgements. The Committee had considered those court judgements. The Committee had made observations on the judgements and the lessons that had been drawn from those judgements.

He addressed the point about the reference to the political party as opposed to the individual Members who were to be charged. The Committee had viewed two videos and in the video of the incident relating to Mr Pravin Gordhan during his Budget Speech, each individual had been identified. However, the problem was with the SONA incident where it had not been possible to identify individual Members. After a long deliberation, the Committee had not identified individuals. He had been concerned about who would be charged.

Dr Lotriet agreed that Dr Ndlozi should be given a copy of the minutes. She noted that the legal opinion was about whether the Committee had jurisdiction and the legal opinion was clear that the Committee had jurisdiction over the matter. The Committee did not yet have an opinion. The Committee was in the preliminary stage. She supported the legal opinion.

Adv Jenkins stated that the Committee had looked at previous court cases but it would be helpful if he were shown or given references to the cases that Dr Ndlozi was referring to. The Committee had discussed two cases in depth.  One had addressed an academic question and had led to an Amendment to the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act. It had dealt with the case of a person in the parliamentary precinct who could have been arrested for causing a disturbance and that was not directly relevant to the at hand. The second court case was in 2014 where Members had been charged with causing a disturbance and there had been a challenge to the proceedings of Parliament but not to the Act itself. In that case, the court had sided with Parliament. He did not know which cases Dr Ndlozi was referring to.

He agreed with Dr Lotriet that the opinion was on whether the Committee had jurisdiction and that the matter was in the preliminary stages. It was a question of whether there had been contempt and the legal opinion was that the Committee should get the investigation done and determine whether charges should be preferred. Only at that point would the Committee look at the individual Members. No specific charges had been laid as yet. There was no allegation as yet. Dr Ndlozi was correct in that when the charges were preferred, they would be preferred against individual Members of the National Assembly and not against a party. He was correct but the Committee was not yet there.

The Chairperson opened the discussion to all Members to engage with the opinion. The opinion was that the Committee was not, at that stage, able to determine contempt. Contempt could only be determined at the end of the process and, secondly, the opinion confirmed that the Committee had jurisdiction. He asked for proposals for the way forward.

Dr Ndlozi stated that the response from Adv Jenkins was dishonest in an intellectual way, although not in a moral way. The substance of his (Dr Ndlozi) argument was that one could not refer to people like that. If that was what the Speaker had said in her letter, then she was wrong. In his introduction, the Chairperson had stated that there was a case that referred to EFF members who had raised several points of order and the legal opinion was in response to that complaint. That was wrong. The Speaker had to refer to specific individual Members and then the complaint could be sent to the Committee. One could not say: “EFF Members were raising points of order, therefore let us take them to the Powers and Privileges Committee.” That violated the agreement. It did not make sense at all. The Speaker had to be told that she was wrong. She had to say which Member and in terms of which specific rule.

That led Dr Ndlozi to his recommendation. He admitted that he had not been in the House but he had read the documents. He noted that the Chairperson had said that the Committee could not identify the Members and it was in the minutes that had been adopted. So, what was the Committee doing? The matter was closed. There was nothing that could be done about the SONA. Nothing outside the rules had happened. Members had raised points of order as was their right and there had been rulings. It was not only EFF Members who had raised points of order. A whole set of Members in Parliament had raised points of order. The House had been suspended and after the break, certain Members of the EFF had decided to leave. That was it! There was nothing wrong and the case was closed. None of the Members had disobeyed the Speaker. If that had been the case, someone would have been removed from the House. There was no case. The Committee should write to the Speaker and tell her that she should not refer parties to the Committee and, secondly, the Committee had studied the video and the case was closed. The Committee had to close that matter now. There was a second case where there was some meat and jam.

He added that the Committee could not state that it was a preliminary discussion. The Committee had already watched the video. Did the Chairperson want them to watch the video again and undertake the exercise again? Was the Committee going to charge Members with raising a point of order? They had already determined that it was EFF Members. If the starting point was that it was the EFF, the Committee was going to be embarrassed in court. He warned the Committee to desist from that. The Chairperson should not even consider saying that the Committee would watch a video of EFF Members! Even if the Committee were to do so, it would not arrive at any substantial conclusion that it was a matter for the Powers and Privileges Committee.

The Chairperson noted the proposal by Dr Ndlozi. He replied that the Committee needed to discuss the legal opinion that had been put forward, and he requested that other Members be given an opportunity to speak on that matter.

Dr Lotriet stated that she would put aside the aspersions cast on Members of the Committee and reiterated that she supported the legal opinion. She believed that the Committee would be remiss in its duty if it set aside any case without due process. At that point, the Committee was not yet looking at the substantive merits of the matter; it was busy with the procedural part. She urged that the legal opinion be accepted and a programme be developed for taking the matter forward.

Ms D Dlakude (ANC) agreed with the legal opinion by the State Law Advisors and with Adv Jenkins that the Committee was not yet dealing with the substantive matter. The Committee was dealing with the legal opinion, with which she agreed. It could not be correct to say that the Committee should just leave the matter because the Committee was not yet there. If it were necessary to go back to the video and identify any Member who had transgressed on that day, then so be it. It was the duty and responsibility of the Committee to do a thorough job so that whatever position the Committee came out with was credible. Whether that was or was not case, the matter could not just be shut down. It was the responsibility of the Committee to do a good job. The Committee could not shut the matter down without following processes.

Ms V Siwela (ANC) agreed that the Committee was there to hear the legal opinion. She accepted the legal opinion. It was the responsibility of the Committee to protect the decorum of the House. She did not want to discuss what Dr Ndlozi had said. The Committee would not be looking at parties but at individual Members and if a Member from another party was involved, the Committee would deal with that person as well. It was the Committee’s responsibility was to deal with the matter according to the rules and it could not at that stage determine whether anyone was guilty or not. She was willing to go back to the video if that was required. She supported the decision to give everyone the opportunity to present his or her side.

Ms D Peters (ANC) agreed with the statement by the previous two speakers. She noted that the Committee had received the opinion that it had sought and it confirmed the authority of the Powers and Privileges Committee.

Ms Peters asked Adv Jenkins why the document ended with the words that the opinion could be amended. Did it mean that the opinion was not conclusive? She advised Dr Ndlozi to hold his horses as the Committee was not yet discussing the merits or demerits of the case. He would receive the opportunity to state his case.

The Chairperson summarised the discussion. He noted that the Committee was not yet dealing with the substance of what had happened at the SONA event. The legal opinion had been sought to advise whether the Committee had jurisdiction over the incident that had happened, given all the views that had been expressed in the meeting. The legal opinion stated that the Committee did have jurisdiction and could consider the matter and make a conclusion for or against.

He added that the second issue was whether there was contempt and the legal opinion stated that it was premature to determine that. The Committee had to identify the individual Members against whom charges could be brought and had to allow those Members to make representation. Thereafter, the Committee would decide whether to proceed or not. Dr Ndlozi’s proposal to abandon the process was premature as the Committee had to follow the correct processes.

The Chairperson asked how the Committee was going to identify the Members who were alleged to have been involved in the incident. On the second video, the Committee had identified the Members, having been assisted by parliamentary officials, who would be charged and they would now be taken through the process. The same process had to be followed in the case of the SONA video. The Committee had to hear the representations of the Members and determine the merits of that representation. The Committee would determine the format of those representations.

The Chairperson stated that the way forward for the Committee was to identify the Members and then request the Members to make representations.

He added that reference to EFF Members was not coined by the Committee but it had come from the Office of the Speaker but whether the Speaker was correct in referring to the individuals as Members of the EFF was a matter that could be discussed when the Committee dealt with the substance of the matter.

Dr Ndlozi wanted it on record that he seriously objected to the decision of the Committee. There were no legal grounds to listen to a complaint that treated Members of Parliament ‘as a group of a political party’. 

The people of SA had decided that the EFF had to be in Parliament. The legal opinion, despite its highly contradictory nature, referred to the Rules that stated that “a Member” had to be referred to the Committee, not a political party. The Committee had no jurisdiction over a political party. He strongly objected and wanted his objection on record.

Dr Ndlozi agreed that there could be a process, but what he wanted to see was that Member X was brought to the Committee and that the Speaker indicated exactly which Act had been violated. If there was a particular person who had violated specific Acts, then the Committee could ask that person to make representations. He asked what the Members would see on the video. What was the Committee going to watch them doing on the video? Was the Committee going to have to decide which rule the Members were breaking? That could not be justice. The Committee could not be the investigator and the judge. That could not be right.

The Chairperson stated that the objections of Dr Ndlozi would be recorded. However, the Committee had jurisdiction in the matter and would take the process forward.

The Chairperson requested Adv Jenkins to move onto the issue of the appointment of an external initiator and then the initiator could start the process with the Members who had disrupted the budgetary process as those Members had been identified.

Adv Jenkins answered Ms Peters’ question about the legal opinion. The counsel had provided advice on the matter of jurisdiction but could not comment on the matter of whether the incident had constituted a violation of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act because processes had to be followed before that point could be contemplated. Counsel was prepared to provide legal advice. Adv Jenkins noted that it stood to reason that counsel would make himself available to consider it further as it would be work for him and he would get paid for it.

Appointment of the external initiator

Adv Tetyana noted that the Committee had resolved to appoint an initiator in terms of Schedule 4 to act as External Initiator for the alleged disruption of the Budget Vote Debate speech of Minister Gordhan. He noted that the Committee had divested itself of the right to be presented with the shortlist of names and, therefore, the initiator had been appointed without further consultation with the Committee.

Adv Tetyana announced that Adv Ncumisa Mayosi had been appointed. She had extensive experience in litigation, constitutional processes, and in administrative law and had been briefed by Parliament previously. She had 12 years’ experience as Junior Counsel. Adv Tetyana confirmed that counsel had been furnished with all documentation relating to the case, including the video. He also confirmed that counsel was ready, able and willing to be of assistance to the Committee in that matter.

In regard to the way forward, it would be up to the Committee to determine a suitable date to begin with the inquiry so that Counsel could proceed with drawing up charge sheets and preparing for the representations by the Members involved.

The Chairperson confirmed that the Committee had been of the view that it was not be necessary for the Committee to review the three shortlisted names as it was keen to move as speedily as possible and would rely on the choice of the Speaker. He welcomed the selection of Adv Mayosi as the Initiator for the process. He would need to touch base with the Initiator before the programme was drawn up as dates needed to be negotiated and the Committee required advice on how to structure the proceedings.

He requested that Members provide input.

Discussion

Dr Ndlozi noticed that the Committee was not in the preliminary stage as a decision had been taken to appoint an initiator, which was contrary to what was implied in the previous discussion.

The Chairperson explained that the issue under discussion related to the incident that took place during the Budget Vote and not the SONA. The SONA issue was a separate matter. The programme to be developed for the initiator related to those Members identified in the video during the Budget Vote. The SONA matter would be addressed once the Committee had determined whether to proceed. The Committee agreed that it would view the video once more.

Dr Ndlozi noted that he was coming in when the second matter was at an advanced stage. He stated that the details of Counsel should have been furnished to Members in writing, together with other documents issued in preparation for the meeting. Adv Tetyana should circulate the document that he had been reading from.

The Chairperson requested Adv Tetyana to circulate Adv Mayosi’s curriculum vitae to Members.

Ms Siwela appreciated the presentation by Adv Tetyana and accepted the recommendation of the Speaker. She welcomed Adv Mayosi and believed that she would deliver on the programme to be followed.

Ms Siwela echoed the request for a copy of Adv Mayosi’s curriculum vitae.

Ms Dlakude welcomed the appointment and the speed with which Parliament had responded.

She indicated that she had not received the information regarding the meeting and promised that she would give her details to the Committee Secretary. The invitation might have been sent to her parliamentary email address which she was not currently able to access.

The Chairperson reiterated that the Committee Secretary would, in future, be calling all Members prior to a meeting.

He noted that the Committee welcomed the appointment of Adv Mayosi. The CV or profile of Adv Mayosi would be circulated. He and the support team would sit down with Adv Mayosi and draft the programme, which would be circulated to Members of the Committee. The Committee would be proceeding with the matter of the incident that had occurred during the budget speech of Minister Pravin Gordhan.

Ms Siwela thanked the Chairperson for a good meeting.

The Chairperson thanked those Members who had been unaware of the meeting and had been in other meetings but had come immediately once they had been alerted to the meeting. He thanked the support team for their work. He stated that the Committee would have to find time to sit and view the SONA video to identify Members and initiate the process.

Concluding remarks

The Chairperson thanked the Members for their participation.

 

The meeting was adjourned.